March 2, 2016 • Volume 55, No. 9
Inside This Issue
Table of Contents................................................ 3
Update Your Contact Information for the
2016–2017 Bench & Bar Directory................... 6
Expired Court Reporter Certifications........... 6
State Bar of New Mexico Annual Awards....... 9
Clerk’s Certificates............................................ 15
From the New Mexico Supreme Court
2015-049, No. S-1-SC-35410:
Public Censure in the Matter of
Sarah M. Singleton...................................... 17
2014-094, No. S-1-SC-34995:
Public Censure in the Matter of
David Ramos, Sr........................................... 18
2015-NMSC-035, No. S-1-SC-35160:
Robinson v. Board of Commissioners
of the County of Eddy................................. 19
From the New Mexico Court of Appeals
2015-NMCA-111, No. 32,830:
Woody Investment, LLC v.
Sovereign Eagle, LLC.................................. 24
2015-NMCA-112, No. 32,105:
Paez v. Burlington Northern
Santa Fe Railway.......................................... 29
Stark, by Christopher Owen Nelson
Waxlander Gallery, Santa Fe
CLE at Se
Western C
aribbean
a 2016
• Nov. 27
–Dec. 4, 2
016
Join State Bar President Brent Moore for this incredible trip and enter the holiday season
CLE stress free. One year’s worth of CLE credits will be provided.
GULF OF
MEXICO
USA
Fort Lauderdale
ATLANTIC OCEAN
Cozumel
Labadee
Mexico
Falmouth
South America
Seven Night Roundtrip from Fort Lauderdale
Ports of call on the Royal Caribbean Allure of the Seas:
Cozumel, Mexico • Falmouth, Jamaica • Labadee, Haiti
Prices per person based on double occupancy (including port expenses)
$679 Interior
$939 Superior ocean view, deck 10 or 11 with balcony
$901 Obstructed ocean view $949 Superior ocean view, deck 12 or 14 with balcony
Plus taxes and fees
Contact Terri Nelson with Vacations To Go by April 29 to guarantee a room.
Flight reservations may be made on your own or through Terri.
1-800-998-6925, ext. 8704 • [email protected]
CLE course information is forthcoming.
Teach a one to two hour class and get free CLE registration ($325).
Send proposals to Christine Morganti, [email protected].
CENTER FOR LEGAL EDUCATION
For more information go to www.nmbar.org, for Members, CLE at Sea
2
Bar Bulletin - March 2, 2016 - Volume 55, No. 9
Table of Contents
Officers, Board of Bar Commissioners
J. Brent Moore, President
Scotty A. Holloman, President-elect
Dustin K. Hunter, Vice President
Gerald G. Dixon, Secretary Treasurer
Mary Martha Chicoski, Immediate Past President
Board of Editors
Bruce Herr, Chair
Jamshid Askar
Nicole L. Banks
Alex Cotoia
Curtis Hayes
Andrew Sefzik
Michael Sievers
Mark Standridge
Nancy Vincent
Carolyn Wolf
State Bar Staff
Executive Director Joe Conte
Communications Coordinator/Editor
Evann Kleinschmidt
505-797-6087 • [email protected]
Graphic Designer Julie Schwartz
[email protected]
Account Executive Marcia C. Ulibarri
505-797-6058 • [email protected]
Digital Print Center
Manager Brian Sanchez
Assistant Michael Rizzo
©2016, State Bar of New Mexico. No part of this publication may be reprinted or otherwise reproduced without
the publisher’s written permission. The Bar Bulletin has
the authority to edit letters and materials submitted for
publication. Publishing and editorial decisions are based
on the quality of writing, the timeliness of the article,
and the potential interest to readers. Appearance of
an article, editorial, feature, column, advertisement or
photograph in the Bar Bulletin does not constitute an
endorsement by the Bar Bulletin or the State Bar of New
Mexico. The views expressed are those of the authors,
who are solely responsible for the accuracy of their
citations and quotations. State Bar members receive the
Bar Bulletin as part of their annual dues. The Bar Bulletin
is available at the subscription rate of $125 per year and
is available online at www.nmbar.org.
The Bar Bulletin (ISSN 1062-6611) is published weekly
by the State Bar of New Mexico, 5121 Masthead NE,
Albuquerque, NM 87109-4367. Periodicals postage paid at
Albuquerque, NM. Postmaster: Send address changes to Bar
Bulletin, PO Box 92860, Albuquerque, NM 87199-2860.
505-797-6000 • 800-876-6227 • Fax: 505-828-3765
Email: [email protected] • www.nmbar.org
March 2, 2016, Vol. 55, No. 9
Notices ..................................................................................................................................................................4
Expired Court Reporter Certifications.........................................................................................................6
Legal Education Calendar...............................................................................................................................7
State Bar of New Mexico Annual Awards...................................................................................................9
Writs of Certiorari.............................................................................................................................................11
Court of Appeals Opinions List....................................................................................................................14
Clerk’s Certificates............................................................................................................................................15
Recent Rule-Making Activity........................................................................................................................16
Opinions
From the New Mexico Supreme Court
2015-049, No. S-1-SC-35410: Public Censure in the Matter of Sarah M. Singleton.........17
2014-094, No. S-1-SC-34995: Public Censure in the Matter of David Ramos, Sr...............18
2015-NMSC-035, No. S-1-SC-35160:
Robinson v. Board of Commissioners of the County of Eddy.................................................19
From the New Mexico Court of Appeals
2015-NMCA-111, No. 32,830: Woody Investment, LLC v. Sovereign Eagle, LLC...............24
2015-NMCA-112, No. 32,105: Paez v. Burlington Northern Santa Fe Railway...................29
Advertising.........................................................................................................................................................35
State Bar Workshops
Meetings
March
March
2
Employment and Labor Law Section BOD,
Noon, State Bar Center
2
Divorce Options Workshop:
6–8 p.m., State Bar Center, Albuquerque,
505-797-6003
4
Bankruptcy Law Section BOD,
Noon, U.S. Bankruptcy Court
4
Criminal Law Section BOD,
Noon, Kelley & Boone, Albuquerque
8
Appellate Practice Section BOD,
Noon, teleconference
9
Animal Law Section BOD,
Noon, State Bar Center
9
Children’s Law Section BOD,
Noon, Juvenile Justice Center
9
Taxation Section BOD,
11 a.m., teleconference
10
Business Law Section BOD,
4 p.m., teleconference
2
Civil Legal Clinic:
10 a.m.–1 p.m., Second Judicial District
Court, Albuquerque, 1-877-266-9861
8
Legal Clinic for Veterans:
8:30–11 a.m., New Mexico Veterans
Memorial, Albuquerque,
505-265-1711, ext. 3434
16
Family Law Clinic:
10 a.m.–1 p.m., Second Judicial District
Court, Albuquerque, 1-877-266-9861
23
Consumer Debt/Bankruptcy Workshop:
6–9 p.m., State Bar Center, Albuquerque,
505-797-6094
April
1
Civil Legal Clinic:
10 a.m.–1 p.m., First Judicial District Court,
Santa Fe, 1-877-266-9861
Cover Artist: Christopher Owen Nelson’s work has been strongly focused in the greater southwestern region. As a Colorado
native, he studied fine arts at Rocky Mountain College of Art and Design. He combines elements of his skills like painting,
construction and song writing to tell his story. Recently, Nelson’s achievements in the arts have been featured in several
national publications including: Western Art Collector, Luxe Interiors and Design, Western Art and Architecture, Santa Fean
magazine and American Art Collector. To view more of his work, visit www.chrisnelsonfineart.com.
Bar Bulletin - March 2, 2016 - Volume 55, No. 9
3
Notices
Professionalism Tip
Court News
New Mexico Court of Appeals
With respect to my clients:
Stephen French Appointed to
Fill Vacancy
On Feb. 18, Gov. Susana Martinez
announced the appointment of Stephen
French to the New Mexico Court of Appeals, filling the vacancy created by the
retirement of Judge Cynthia Fry.
Second Judicial District Court
David Williams Appointed to
Fill Vacancy
On Feb. 12, Gov. Susana Martinez announced the appointment of David Williams
to Division IX of the Second Judicial District
Court in Bernalillo County. Williams’ appointment fills the vacancy created by the
appointment of Judge Judith Nakamura to
the New Mexico Supreme Court.
Ninth Judicial District Court
Notice of Exhibit Destruction
The Ninth Judicial District Court,
Roosevelt County, will destroy the following exhibits by order of the court if
not claimed by the allotted time: 1) All
unmarked exhibits, oversized poster
boards/maps and diagrams; 2) Exhibits
filed with the court, in criminal, civil,
children’s court, domestic, competency/
mental health, adoption and probate cases
for the years 1993–2012 may be retrieved
through April 30; and 3) All cassette
tapes in criminal, civil, children’s court,
domestic, competency/mental health,
adoption and probate cases for years prior
to 2007 have been exposed to hazardous
toxins and extreme heat in the Roosevelt
County Courthouse and are ruined and
cannot be played, due to the exposures.
These cassette tapes have either been destroyed for environmental health reasons
or will be destroyed by April 30. For more
information or to claim exhibits, contact
the Court at 575-359-6920.
Santa Fe Municipal Court
Retirement Celebration for
Judge Ann Yalman
Members of the legal community are
invited to celebrate the retirement of Judge
Ann Yalman of the Santa Fe Municipal
Court. A reception will be held from
5:30–7:30 p.m., March 3, at the City of
Santa Fe Convention Center, 201 West
Marcy Street, Santa Fe, New Mexico
87501.
4
I will be courteous to and considerate of my client at all times.
There is an opening for a tribal judge
withe the Pueblo of Jemez. The position
will be responsible for direction and
administration of justice for the Pueblo
of Jemez’ Tribal Court and judiciary
functions; advises executive leadership on
judicial system management and strategic
planning, develops, modifies and enforces
judicial safeguards. Qualifications include
a law degree from an ABA accredited
law school, five years of general judicial
experience to include court procedures,
three years of experience in specified duties and responsibilities and experience
and/or practice in the field of Indian law
with emphasis on federal Indian law, tribal
law, tribal sovereignty, tribal government
and jurisdiction. For mor information,
visit the www.jemezpueblo.org or call
the Human Resources Department at
575-834-7359.
be at noon at the State Bar Center in Albuquerque. For the past several years the
Appellate Practice Section and YLD have
scheduled quarterly lunches with jurists
from New Mexico’s appellate courts. The
lunches are informal and are intended to
create opportunities for appellate judges
and the practitioners who appear before
them to exchange ideas and to get to know
each other better. Attendees are encouraged to bring their own “brown bag” lunch.
Space is limited, so R.S.V.P. to Tim Atler at
[email protected].
Justice Nakamura graduated from the
UNM School of Law in 1989. She was elected to the Bernalillo County Metropolitan
Court in 1998 and served as chief judge for
11 years. She was appointed to the Second
Judicial District Court in January 2013 and
to the New Mexico Supreme Court in December 2015. Justice Nakamura is the first
Supreme Court Justice in New Mexico to
have also served on both the Metropolitan
and District Court benches.
State Bar News
Public Law Section
Pueblo of Jemez Tribal Court
Tribal Judge Opening
Attorney Support Groups
• March 14, 5:30 p.m.
UNM School of Law, 1117 Stanford NE,
Albuquerque, King Room in the Law
Library (the group meets on the second
Monday of the month). To increase
access, teleconference participation is
now available. Dial 1-866-640-4044 and
enter code 7976003#.
• March 21, 7:30 a.m.
First United Methodist Church, 4th
and Lead SW, Albuquerque (the group
meets the third Monday of the month.)
• April 4, 5:30 p.m.
First United Methodist Church, 4th
and Lead SW, Albuquerque (the group
meets the first Monday of the month.)
For more information, contact Hilary
Noskin, 505-449-7984 or Bill Stratvert,
505-242-6845.
Appellate Practice Section
Brown Bag Luncheon with
Justice Judith K. Nakamura
The Appellate Practice Section and
Young Lawyers Division announce the
next brown bag luncheon on March 4
with Judith K. Nakamura. The event will
Bar Bulletin - March 2, 2016 - Volume 55, No. 9
Accepting Award Nominations
The Public Law Section is accepting
nominations for the Public Lawyer of the
Year Award, which will be presented at
the state capitol on April 29. Visit www.
nmbar.org > About Us > Sections > Public
Lawyer Award to view previous recipients
and award criteria. Nominations are due
no later than 5 p.m. on March 10. Send
nominations to Sean Cunniff at scunniff@
nmag.gov. The selection committee will
consider all nominated candidates and
may nominate candidates on its own.
Solo and Small Firm Section
Legislative Update with
Sen. Mike Sanchez
As part of the Solo and Small Firm
Section’s luncheon and presentation
series, State Sen. Mike Sanchez will present a legislative update. Sen. Sanchez will
discuss what was accomplished in the
Roundhouse this session and what may
be coming in the future. The presentation
will be noon, March 15, at the State Bar
Center in Albuquerque. The presentation is open to all members of the State
Bar who R.S.V.P. to Evann Kleinschmidt,
[email protected]. Pizza and
cookies will be provided.
Save the date for the April 19 presentation with David Serna, Leon Encinias and
John Samore presenting “The Emerging
Future of Legal Relationships with Cuba.”
Young Lawyers Division
Volunteers Needed for Veterans
Legal Clinic on March 8
The Young Lawyers Division and the
New Mexico Veterans Affairs Health Care
System are holding clinics for the Veterans
Civil Justice Legal Initiative from 9 a.m.–
noon, the second Tuesday of each month
at the New Mexico Veterans Memorial,
1100 Louisiana Blvd. SE, Albuquerque.
Breakfast and orientation for volunteers
begin at 8:30 a.m. No special training or
certification is required. Volunteers can
give advice and counsel in their preferred
practice area(s). The next clinic is Tuesday,
March 8. Those who are interested in
volunteering or have questions should
contact Keith Mier at [email protected]
or 505-883-3395.
UNM
Law Library
Albuquerque Bar Association
New Judges Reception
The Albuquerque Bar Association invites members to an event congratulating
newly elected and appointed judges from
5:30–7:30 p.m., March 10, at the Pete V.
Domenici U.S. Courthouse. Register for
this exclusive event by calling the Albuquerque Bar at 505-842-1151 or online
abqbar.org. This event is only open to
Albuquerque Bar and Federal Bench and
Bar members.
Albuquerque Lawyers Club
March Luncheon and Meeting
The Albuquerque Lawyers Club invites
members of the legal community to its
lunch meeting at noon, March 2, at Seasons
Rotisserie and Grill in Albuquerque. Jeffrey
Lewine, Ph.D., of the Mind Research Network, and Lyn Kiehl, director of MINDSET
will present “Neuroscience: From the Laboratory to the Courtroom.” The luncheon is
free to members and $30 for non-members.
For more information, email Yasmin Dennig at [email protected].
American Bar Association
Criminal Justice Section
Hours Through May 14
Building & Circulation
Monday–Thursday Friday
Saturday
Sunday
Reference
Monday–Friday
Saturday–Sunday
Other Bars
8 a.m.–8 p.m.
8 a.m.–6 p.m.
10 a.m.–6 p.m.
Noon–6 p.m.
9 a.m.–6 p.m.
Closed
Mexican American Law
Student Association
21st Annual Fighting for
Justice Banquet
The Mexican American Law Student
Association invites members of the legal
community to the 21st Annual Fighting
for Justice Banquet at 6 p.m., April 16, at
Hotel Albuquerque in Old Town. Tickets
and sponsorship packages can be bought
at http://malsaorg.wix.com/ffj2016 or by
contacting MALSA President Jazmine Ruiz
at [email protected]. MALSA will award
Hon. Justice Cruz Reynoso of the California
Supreme Court (ret.) with the 2016 Fighting for Justice Award for his remarkable
work in civil rights. Justice Reynoso will
be introduced by his former colleague,
Emeritus Professor and former Dean of the
UNM School of Law Leo Romero.
Spring Meeting in Albuquerque
The American Bar Association Criminal Justice Section’s Spring Meeting, cosponsored by the State Bar of New Mexico,
will be “Neuroscience: Paving the Way for
Criminal Justice Reform.” The meeting will
be held April 28-April 30 at Hotel Albuquerque at Old Town in Albuquerque. Topics
include how neuroscience is paving the way
to criminal justice reform, neuroscience and
environmental factors, neuroscience and
solitary confinement and the neuroscience
of hate: the making of extremist groups.
New Mexico Supreme Court Justice Charles
W. Daniels will be the luncheon keynote
speaker. Roberta Cooper Ramo, the first
woman to become president of the American Bar Association, will provide opening
remarks. State Bar of New Mexico members
can register for the discounted rate of $75.
For more information and to register, visit:
http://ambar.org/cjs2016spring
New Mexico Criminal Defense
Lawyers Association
A service of the New Mexico State Bar
Foundation, the Center provides programming
in live, online webcast, teleseminar,
onsite video replay, online anytime video,
and DVD formats. CLE courses fulfill the
minimum requirements of
10.0 G, 2.0 EP credits per year.
Call 505-797-6020 or visit www.nmbar.org.
New Mexico Lawyers
and Judges
Assistance Program
Help and support are only a phone call away.
24-Hour Helpline
Attorneys/Law Students
505-228-1948 • 800-860-4914
Judges
888-502-1289
www.nmbar.org > for Members >
Lawyers/Judges Asswistance
Submit
announcements
for publication in
the Bar Bulletin to
[email protected]
g
by noon Monday
the week prior
to publication.
Trial Skills College
Need to brush up on trial tactics? In the
New Mexico Criminal Defense Lawyers
Bar Bulletin - March 2, 2016 - Volume 55, No. 9
5
Association’s “Trial Skills College” (15.5 G)
on March 17–19 in Albuquerque, students
will hear lectures and practice with each
other in small focus groups on every aspect
of a trial, from voir dire to closing statements. New and seasoned practitioners
alike will benefit from this course. Only
30 seats are available. Register at www.
nmcdla.org.
White Collar Crime CLE
Learn the latest updates and trends
in charging health care cases, grand jury
practice, and submitting budget requests
for adequate funding at the New Mexico
Criminal Defense Lawyers Association’s
upcoming CLE “White Collar Crime &
Complex Cases” on March 11 at the Garrett’s Desert Inn in Santa Fe. Hear from
some of the leading practitioners in the
state on these issues and more. Visit www.
nmcdla.org for more information and to
register.
NE, Albuquerque. Continental breakfast
will be provided. Clients will be creative
professionals, artists or creative businesses. Attorneys are needed to assist in
many areas including contracts, business
law, employment matters, tax law, estate
planning and intellectual property law. For
more information and to participate, contact Talia Kosh at tk@thebennettlawgroup.
com.
Society for Human Resource
Management of New Mexico
2016 Conference in Albuquerque
The Society for Human Resource
Management of New Mexico has announced its 2016 conference “Picture the
New Mexico Women’s Bar
Association
Meet and Greet Event
The New Mexico Women’s Bar Association, a voluntary state-wide bar association
open to all New Mexico attorneys regardless of sex or gender, is hosting a meet and
greet event from 5:30–7 p.m., March 18,
at the Albuquerque Country Club, 601
Laguna Blvd. SW, Albuquerque. NMWBA
will providing light hors d’oeuvres and
an exciting door prize with a cash bar.
Members who bring a guest are elligible
to attend a NMWBA sponsored CLE for
free. R.S.V.P. suggested but not required to
[email protected].
Other News
New Mexico Lawyers
for the Arts
Volunteers Needed for
Pro Bono Legal Clinic
New Mexico Lawyers for the Arts and
WESST/Albuquerque seek attorneys to
volunteer for the New Mexico Lawyers
for the Arts Pro Bono Legal Clinic from
10 a.m. to 1 p.m., March 19, at the WESST
Enterprise Center, 609 Broadway Blvd.
6
Bar Bulletin - March 2, 2016 - Volume 55, No. 9
Future... BE the Future” on March 7–9
at the Embassy Suites Hotel and Spa in
Albuquerque. The conference includes
speakers and topics of interest to HR
professionals, legal professionals, and
business professionals of all disciplines.
Keynote speakers include Louis Efron,
former head of global engagement and
leadership development at Tesla Motors;
Ann Rhoades, president of People Ink,
and former vice president of the People
Department for Southwest Airlines; Dr.
Richard Pimentel, senior partner with
Milt Wright & Associates Inc; and Cy
Wakeman, author and president and
founder of Reality Based. More information and registration is available at www.
shrmnm.org.
2016–2017 Bench & Bar Directory
Update Your Contact Information by March 25
To verify your current information: www.nmbar.org/FindAnAttorney
To submit changes (must be made in writing):
Online: Visit www.nmbar.org > for Members > Change of Address
Mail: Address Changes, PO Box 92860, Albuquerque, NM 87199-2860
Fax: 505-828-3765
Email: [email protected]
Publication is not guaranteed for information submitted after March 25.
The Board Governing the Recording of Judicial Proceedings
A Board of the Supreme Court of New Mexico
Expired Court Reporter Certifications
The following list includes the names and certification numbers of those
court reporters whose New Mexico certifications expired as of Dec. 31, 2015.
Name
Maria Blackwell
Carol Carson
Barbara Harris
Christi Macri
Susan Moore
Wendy Morrison
Kailee Pereida
Dennis Zambataro
CCR CCM No.
CCR #181
CCR #28
CCR #114
CCR #10
CCR #34
CCR #195
CCR #501
CCR #502
City, State
Bernalillo, N.M.
Las Cruces, N.M.
Albuquerque, N.M.
Fairport, N.Y.
Albuquerque, N.M.
Albuquerque, N.M.
Lubbock, Texas
Milton, Ga.
Legal Education
March
2
Strategies to Prosecute Sexual
Assault Cases in New Mexico
13.2 G
Live Seminar
New Mexico Coalition of Sexual
Assault Programs
www.nmcsap.org
4
31st Annual Bankruptcy Year in
Review Seminar
6.0 G, 1.0 EP
Live Seminar and Webcast
Center for Legal Education of NMSBF
www.nmbar.org
4
How Ethics Still Apply When
Lawyers Act as Non-Lawyers
1.0 EP
Teleseminar
Center for Legal Education of NMSBF
www.nmbar.org
8
Working with Difficult Clients
1.0 EP
Live Seminar
New Mexico Adoption and Foster
Care Alliance
www.adoptfostercarealliancenm.org
9
Foreclosure Litigation Defense
6.0 G
Live Seminar, Albuquerque
Gleason Law Firm LLC
[email protected]
10
Estate and Gift Tax Audits
1.0 G
Teleseminar
Center for Legal Education of NMSBF
www.nmbar.org
10
Advanced Workers Compensation
5.6 G, 1.0 EP
Live Seminar
Sterling Education Services Inc.
www.sterlingeducation.com
11
Navigating New Mexico Public
Land Issues (2015)
5.5 G, 1.0 EP
Live Replay
Center for Legal Education of NMSBF
www.nmbar.org
11
Federal Practice Tips and Advice
from U.S. Magistrate Judges (2015)
2.0 G, 1.0 EP
Live Replay
Center for Legal Education of NMSBF
www.nmbar.org
17–19 Trial Skills College
15.5 G
Live Seminar, Albuquerque
New Mexico Criminal Defense
Lawyers Association
www.nmcdla.org
11
18
2015 Tax Symposium (2015)
7.0 G
Live Replay
Center for Legal Education of NMSBF
www.nmbar.org
Law Practice Succession-A Little
Thought Now, a Lot Less Panic
Later (2015) 2.0 G
Live Replay
Center for Legal Education of NMSBF
www.nmbar.org
11
The Future of Crosscommissioning: What Every Tribal,
State and County Lawyer Should
Consider post Loya v. Gutierrez
2.5 G, 1.0 EP
Live Replay
Center for Legal Education of NMSBF
www.nmbar.org
11
White Collar Crime & Complex
Cases: The Clients, the Charges, the
Costs
6.7 G
Live Seminar, Santa Fe
New Mexico Criminal Defense
Lawyers Association
www.nmcdla.org
15
Estate and Trust Planning for Short
Life Expectancies
1.0 G
Teleseminar
Center for Legal Education of NMSBF
www.nmbar.org
15
Advocacy in Action Conference
18.10 G
Live Seminar
New Mexico Coalition of Sexual
Assault Programs
www.nmcsap.org
17
Second Annual State Bar
Symposium on Diversity and
Inclusion
5.0 G, 1.0 EP
Live Seminar and Webcast
Center for Legal Education of NMSBF
www.nmbar.org
18
The Trial Variety: Juries, Experts
and Litigation (2015)
6.0 G
Live Replay
Center for Legal Education of NMSBF
www.nmbar.org
18
Ethically Managing Your Practice
(Ethicspalooza Redux –Winter
2015)
1.0 EP
Live Replay
Center for Legal Education of NMSBF
www.nmbar.org
18
Civility and Professionalism
(Ethicspalooza Redux – Winter
2015)
1.0 EP
Live Replay
Center for Legal Education of NMSBF
www.nmbar.org
18
Ethics and Keeping Your Paralegal
and Yourself Out of Trouble
1.0 EP
Teleseminar
Center for Legal Education of NMSBF
www.nmbar.org
23
Avoiding Family Feuds in Trusts
1.0 G
Teleseminar
Center for Legal Education of NMSBF
www.nmbar.org
24
Full Implementation Navigating
the ACA Minefield
6.6 G
Live Seminar
Sterling Education Services Inc.
www.sterlingeducation.com
Bar Bulletin - March 2, 2016 - Volume 55, No. 9
7
Legal Education
www.nmbar.org
March
25
Legal Technology Academy for New
Mexico Lawyers
4.0 G, 2.0 EP
Live Seminar and Webcast
Center for Legal Education of NMSBF
www.nmbar.org
28
Tech Tock, Tech Tock: Social Media
and the Countdown to Your Ethical
Demise
3.0 EP
Live Seminar and Webcast
Center for Legal Education of NMSBF
www.nmbar.org
28
What NASCAR, Jay-Z & the Jersey
Shore Teach About Attorney
Ethics—2016 Edition
3.0 EP
Live Seminar and Webcast
Center for Legal Education of NMSBF
www.nmbar.org
29
Drafting Demand Letters
1.0 G
Teleseminar
Center for Legal Education of NMSBF
www.nmbar.org
31
Fair or Foul: Lawyers’ Duties of
Fairness and Honesty to Clients,
Parties, Courts, Counsel and
Others
2.0 EP
Live Seminar and Webcast
Center for Legal Education of NMSBF
www.nmbar.org
April
5
Planning Due Diligence in Business
Transactions
1.0 G
Teleseminar
Center for Legal Education of NMSBF
www.nmbar.org
8
7
Treatment of Trusts in Divorce
1.0 G
Teleseminar
Center for Legal Education of NMSBF
www.nmbar.org
8
8
2015 Land Use Law in New Mexico
5.0 G, 1.0 EP
Live Replay
Center for Legal Education of NMSBF
www.nmbar.org
8
More Reasons to be Skeptical of
Expert Witnesses Part VI (2015)
5.0 G, 1.5 EP
Live Replay
Center for Legal Education of NMSBF
www.nmbar.org
Federal Practice Tips and Advice
from U.S. Magistrate Judges
2.0 G, 1.0 EP
Live Replay
Center for Legal Education of NMSBF
www.nmbar.org
Invasion of the Drones: IP –
Privacy, Policies, Profits (2015
Annual Meeting)
1.5 G
Live Replay
Center for Legal Education of NMSBF
www.nmbar.org
14
Governance for Nonprofits
1.0 G
Teleseminar
Center for Legal Education of NMSBF
www.nmbar.org
18
Disciplinary Process Civility and
Professionalism
1.0 EP
Live Program
First Judicial District Court
505-946-2802
May
4
Ethics and Drafting Effective
Conflict of Interest Waivers
1.0 EP
Teleseminar
Center for Legal Education of NMSBF
www.nmbar.org
8
5
Public Records and Open Meetings
5.5 G, 1.0 EP
Live Seminar, Albuquerque
New Mexico Foundation for
Open Government
www.nmfog.org
Bar Bulletin - March 2, 2016 - Volume 55, No. 9
22
Ethics for Estate Planners
1.0 EP
Teleseminar
Center for Legal Education of NMSBF
www.nmbar.org
26
Employees, Secrets and
Competition: Non-Competes and
More
1.0 G
Teleseminar
Center for Legal Education of NMSBF
www.nmbar.org
27
Landlord Tenant Law Lease
Agreements Defaults and
Collections
5.6 G, 1.0 EP
Live Seminar
Sterling Education Services Inc.
www.sterlingeducation.com
28
Annual Advanced Estate Planning
Strategies
11.2 G
Live Program
Texas State Bar
www.texasbarcle.com
11
Adding a New Member to an LLC
1.0 G
Teleseminar
Center for Legal Education of NMSBF
www.nmbar.org
2016
Annual Meeting–
Bench & Bar Conference
Call for Nominations
State Bar of New Mexico 2016 Annual Awards
N
ominations are being accepted for the 2016 State Bar of New Mexico Annual Awards to recognize those who have
distinguished themselves or who have made exemplary contributions to the State Bar or legal profession in 2015
or 2016. The awards will be presented August 19 during the 2016 Annual Meeting—Bench and Bar Conference
at the Buffalo Thunder Resort in Santa Fe. All awards are limited to one recipient per year, whether living or deceased.
Previous recipients for the past five years are listed below.
• Distinguished Bar Service Award-Lawyer •
Recognizes attorneys who have provided valuable service and contributions to the legal profession and the State Bar of
New Mexico over a significant period of time.
Previous recipients: Jeffrey H. Albright, Carol Skiba, Ian Bezpalko, John D. Robb Jr., Mary T. Torres
• Distinguished Bar Service Award–Nonlawyer •
Recognizes nonlawyers who have provided valuable service and contributions to the legal profession over a significant
period of time.
Previous recipients: Kim Posich, Rear Admiral Jon Michael Barr (ret.), Hon. Buddy J. Hall, Sandra Bauman, David Smoak
Bar Bulletin - March 2, 2016 - Volume 55, No. 9
9
• Justice Pamela B. Minzner* Professionalism Award •
Recognizes attorneys or judges who, over long and distinguished legal careers, have by their ethical and personal
conduct exemplified for their fellow attorneys the epitome of professionalism.
Previous recipients: S. Thomas Overstreet, Catherine T. Goldberg, Cas F. Tabor, Henry A. Kelly, Hon. Angela J. Jewell
*Known for her fervent and unyielding commitment to professionalism, Justice Minzner (1943–2007) served on
the New Mexico Supreme Court from 1994–2007.
• Outstanding Legal Organization or Program Award •
Recognizes sections, committees, local and voluntary bars and outstanding or extraordinary law-related
organizations or programs that serve the legal profession and the public.
Previous recipients: Pegasus Legal Services for Children, Corinne Wolfe Children’s Law Center, Divorce Options
Workshop, United South Broadway Corp. Fair Lending Center, N.M. Hispanic Bar Association
• Outstanding Young Lawyer of the Year Award •
Awarded to attorneys who have, during the formative stages of their legal careers by their ethical and personal
conduct, exemplified for their fellow attorneys the epitome of professionalism; nominee has demonstrated
commitment to clients’ causes and to public service, enhancing the image of the legal profession in the eyes of the
public; nominee must have practiced no more than five years or must be no more than 36 years of age.
Previous recipients: Tania S. Silva, Marshall J. Ray, Greg L. Gambill, Robert L. Jucero Jr., Keya Koul
• Robert H. LaFollette* Pro Bono Award •
Presented to an attorney who has made an exemplary contribution of time and effort, without compensation, to
provide legal assistance to people who could not afford the assistance of an attorney.
Previous recipients: Robert M. Bristol, Erin A. Olson, Jared G. Kallunki, Alan Wainwright, Ronald E. Holmes
*Robert LaFollette (1900–1977), director of Legal Aid to the Poor, was a champion of the underprivileged who,
through countless volunteer hours and personal generosity and sacrifice, was the consummate humanitarian and
philanthropist.
• Seth D. Montgomery* Distinguished Judicial Service Award •
Recognizes judges who have distinguished themselves through long and exemplary service on the bench and who
have significantly advanced the administration of justice or improved the relations between the bench and bar;
generally given to judges who have or soon will be retiring.
Previous recipients: Hon. Cynthia A. Fry, Hon. Rozier E. Sanchez, Hon. Bruce D. Black, Justice Patricio M. Serna
(ret.), Hon. Jerald A. Valentine
*Justice Montgomery (1937–1998), a brilliant and widely respected attorney and jurist, served on the New Mexico
Supreme Court from 1989–1994.
A letter of nomination for each nominee* should be sent to Joe Conte, Executive Director, State Bar of New Mexico, PO
Box 92860, Albuquerque, NM 87199-2860; fax 505-828-3765; or email [email protected]. *Please note that we will be
preparing a video on the award recipients which will be presented at the awards reception, so please provide names
and contact information for three or four individuals who would be willing to participate in the video project in the
nomination letter.
Deadline for Nominations: May 20
10
Bar Bulletin - March 2, 2016 - Volume 55, No. 9
Writs of Certiorari
As Updated by the Clerk of the New Mexico Supreme Court
Joey D. Moya, Chief Clerk New Mexico Supreme Court
PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
Effective February 12, 2016
Petitions for Writ of Certiorari Filed and Pending:
Date Petition Filed
No. 35,758 State v. Abeyta
COA 33,461 02/15/16
No. 35,759 State v. Pedroza
COA 33,867 02/15/16
No. 35,760 State v. Gabaldon
COA 34,770 02/12/16
No. 35,763 State v. Marcelina R.
COA 34,683 02/12/16
No. 35,754 Valenzuela v.
A.S. Horner Inc.
COA 33,521 02/12/16
No. 35,753 State v. Erwin
COA 33,561 02/12/16
No. 35,751 State v. Begay
COA 33,588 02/12/16
No. 35,750 State v. Norma M.
COA 34,768 02/11/16
No. 35,749 State v. Vargas
COA 33,247 02/11/16
No. 35,748 State v. Vargas
COA 33,247 02/11/16
No. 35,742 State v. Jackson
COA 34,852 02/05/16
No. 35,747 Sicre v. Perez
12-501 02/04/16
No. 35,743 Conger v. Jacobson
COA 34,848 02/04/16
No. 35,741 State v. Coleman
COA 34,603 02/04/16
No. 35,740 State v. Wisner
COA 34,974 02/04/16
No. 35,739 State v. Angulo
COA 34,714 02/04/16
No. 35,733 State v. Meyers
COA 34,690 02/02/16
No. 35,732 State v. Castillo
COA 34,641 02/02/16
No. 35,746 Bradford v. Hatch
12-501 02/01/16
No. 35,371 Citimortgage v. Tweed COA 34,870 01/29/16
No. 35,730 State v. Humphrey
COA 34,601 01/29/16
No. 35,722 James v. Smith
12-501 01/25/16
No. 35,711 Foster v. Lea County
12-501 01/25/16
No. 35,713 Hernandez v. CYFD
COA 33,549 01/22/16
No. 35,718 Garcia v. Franwer
12-501 01/19/16
No. 35,717 Castillo v. Franco
12-501 01/19/16
No. 35,707 Marchand v. Marchand COA 33,255 01/19/16
No. 35,705 State v. Farley
COA 34,010 01/19/16
No. 35,702 Steiner v. State
12-501 01/12/16
No. 35,682 Peterson v. LeMaster
12-501 01/05/16
No. 35,677 Sanchez v. Mares
12-501 01/05/16
No. 35,669 Martin v. State
12-501 12/30/15
No. 35,665 Kading v. Lopez
12-501 12/29/15
No. 35,664 Martinez v. Franco
12-501 12/29/15
No. 35,657 Ira Janecka
12-501 12/28/15
No. 35,671 Riley v. Wrigley
12-501 12/21/15
No. 35,649 Miera v. Hatch
12-501 12/18/15
No. 35,641 Garcia v. Hatch Valley
Public Schools
COA 33,310 12/16/15
No. 35,661 Benjamin v. State
12-501 12/16/15
No. 35,654 Dimas v. Wrigley
12-501 12/11/15
No. 35,635 Robles v. State
12-501 12/10/15
No. 35,674 Bledsoe v. Martinez
12-501 12/09/15
No. 35,653 Pallares v. Martinez
12-501 12/09/15
No. 35,637 Lopez v. Frawner
12-501 12/07/15
No. 35,268 Saiz v. State
12-501 12/01/15
No. 35,612
No. 35,599
No. 35,593
No. 35,588
No. 35,581
No. 35,586
No. 35,576
No. 35,575
No. 35,555
No. 35,554
No. 35,540
No. 35,523
No. 35,522
No. 35,495
No. 35,479
No. 35,474
No. 35,466
No. 35,440
No. 35,422
No. 35,374
No. 35,372
No. 35,370
No. 35,353
No. 35,335
No. 35,371
No. 35,266
No. 35,261
No. 35,159
No. 35,097
No. 35,099
No. 34,937
No. 34,932
No. 34,907
No. 34,680
No. 34,777
No. 34,775
No. 34,706
No. 34,563
No. 34,303
No. 34,067
No. 33,868
No. 33,819
No. 33,867
No. 33,539
No. 33,630
Torrez v. Mulheron
12-501
Tafoya v. Stewart
12-501
Quintana v. Hatch
12-501
Torrez v. State
12-501
Salgado v. Morris
12-501
Saldana v. Mercantel
12-501
Oakleaf v. Frawner
12-501
Thompson v. Frawner
12-501
Flores-Soto v. Wrigley
12-501
Rivers v. Heredia
12-501
Fausnaught v. State
12-501
McCoy v. Horton
12-501
Denham v. State
12-501
Stengel v. Roark
12-501
Johnson v. Hatch
12-501
State v. Ross
COA 33,966
Garcia v. Wrigley
12-501
Gonzales v. Franco
12-501
State v. Johnson
12-501
Loughborough v. Garcia
12-501
Martinez v. State
12-501
Chavez v. Hatch
12-501
Collins v. Garrett
COA 34,368
Chavez v. Hatch
12-501
Pierce v. Nance
12-501
Guy v.
N.M. Dept. of Corrections
12-501
Trujillo v. Hickson
12-501
Jacobs v. Nance
12-501
Marrah v. Swisstack
12-501
Keller v. Horton
12-501
Pittman v.
N.M. Corrections Dept.
12-501
Gonzales v. Sanchez
12-501
Cantone v. Franco
12-501
Wing v. Janecka
12-501
State v. Dorais
COA 32,235
State v. Merhege
COA 32,461
Camacho v. Sanchez
12-501
Benavidez v. State
12-501
Gutierrez v. State
12-501
Gutierrez v. Williams
12-501
Burdex v. Bravo
12-501
Chavez v. State
12-501
Roche v. Janecka
12-501
Contreras v. State
12-501
Utley v. State
12-501
11/23/15
11/19/15
11/06/15
11/04/15
11/02/15
10/30/15
10/23/15
10/23/15
10/09/15
10/09/15
10/02/15
09/23/15
09/21/15
08/21/15
08/17/15
08/17/15
08/06/15
07/22/15
07/17/15
06/23/15
06/22/15
06/15/15
06/12/15
06/03/15
05/22/15
04/30/15
04/23/15
03/12/15
01/26/15
12/11/14
10/20/14
10/16/14
09/11/14
07/14/14
07/02/14
06/19/14
05/13/14
02/25/14
07/30/13
03/14/13
11/28/12
10/29/12
09/28/12
07/12/12
06/07/12
Bar Bulletin - March 2, 2016 - Volume 55, No. 9 11
Writs of Certiorari
Certiorari Granted but Not Yet Submitted to the Court:
Certiorari Granted and Submitted to the Court:
(Parties preparing briefs) Date Writ Issued
No. 33,725 State v. Pasillas
COA 31,513 09/14/12
No. 33,877 State v. Alvarez
COA 31,987 12/06/12
No. 33,930 State v. Rodriguez
COA 30,938 01/18/13
No. 34,363 Pielhau v. State Farm
COA 31,899 11/15/13
No. 34,274 State v. Nolen
12-501 11/20/13
No. 34,443 Aragon v. State
12-501 02/14/14
No. 34,522 Hobson v. Hatch
12-501 03/28/14
No. 34,582 State v. Sanchez
COA 32,862 04/11/14
No. 34,694 State v. Salazar
COA 33,232 06/06/14
No. 34,669 Hart v. Otero County Prison 12-501 06/06/14
No. 34,650 Scott v. Morales
COA 32,475 06/06/14
No. 34,784 Silva v. Lovelace Health
Systems, Inc.
COA 31,723 08/01/14
No. 34,812 Ruiz v. Stewart
12-501 10/10/14
No. 34,830 State v. Le Mier
COA 33,493 10/24/14
No. 34,929 Freeman v. Love
COA 32,542 12/19/14
No. 35,063 State v. Carroll
COA 32,909 01/26/15
No. 35,121 State v. Chakerian
COA 32,872 05/11/15
No. 35,116 State v. Martinez
COA 32,516 05/11/15
No. 34,949 State v. Chacon
COA 33,748 05/11/15
No. 35,296 State v. Tsosie
COA 34,351 06/19/15
No. 35,213 Hilgendorf v. Chen
COA 33056 06/19/15
No. 35,279 Gila Resource v. N.M. Water Quality Control
Comm. COA 33,238/33,237/33,245 07/13/15
No. 35,289 NMAG v. N.M. Water Quality Control
Comm. COA 33,238/33,237/33,245 07/13/15
No. 35,290 Olson v. N.M. Water Quality Control
Comm. COA 33,238/33,237/33,245 07/13/15
No. 35,318 State v. Dunn
COA 34,273 08/07/15
No. 35,278 Smith v. Frawner
12-501 08/26/15
No. 35,427 State v.
Mercer-Smith
COA 31,941/28,294 08/26/15
No. 35,446 State Engineer v.
Diamond K Bar Ranch COA 34,103 08/26/15
No. 35,451 State v. Garcia
COA 33,249 08/26/15
No. 35,438 Rodriguez v.
Brand West DairyCOA 33,104/33,675 08/31/15
No. 35,426 Rodriguez v.
Brand West DairyCOA 33,675/33,104 08/31/15
No. 35,499 Romero v.
Ladlow Transit Services COA 33,032 09/25/15
No. 35,456 Haynes v. Presbyterian
Healthcare Services
COA 34,489 09/25/15
No. 35,437 State v. Tafoya
COA 34,218 09/25/15
No. 35,515 Saenz v.
Ranack Constructors
COA 32,373 10/23/16
No. 35,614 State v. Chavez
COA 33,084 01/19/16
No. 35,609 Castro-Montanez v.
Milk-N-Atural
COA 34,772 01/19/16
No. 35,512 Phoenix Funding v.
Aurora Loan Services COA 33,211 01/19/16
No. 34,790 Venie v. Velasquez
COA 33,427 01/19/16
No. 35,680 State v. Reed
COA 33,426 02/05/16
(Submission Date = date of oral
argument or briefs-only submission)
Submission Date
No. 33,884 Acosta v. Shell Western Exploration
and Production, Inc.
COA 29,502 10/28/13
No. 34,093 Cordova v. Cline
COA 30,546 01/15/14
No. 34,287 Hamaatsa v.
Pueblo of San Felipe
COA 31,297 03/26/14
No. 34,613 Ramirez v. State
COA 31,820 12/17/14
No. 34,798 State v. Maestas
COA 31,666 03/25/15
No. 34,630 State v. Ochoa
COA 31,243 04/13/15
No. 34,789 Tran v. Bennett
COA 32,677 04/13/15
No. 34,997 T.H. McElvain Oil & Gas v.
Benson
COA 32,666 08/24/15
No. 34,993 T.H. McElvain Oil & Gas v.
Benson
COA 32,666 08/24/15
No. 34,726 Deutsche Bank v.
Johnston
COA 31,503 08/24/15
No. 34,826 State v. Trammel
COA 31,097 08/26/15
No. 34,866 State v. Yazzie
COA 32,476 08/26/15
No. 35,035 State v. Stephenson
COA 31,273 10/15/15
No. 35,478 Morris v. Brandenburg COA 33,630 10/26/15
No. 35,248 AFSCME Council 18 v. Bernalillo
County Comm.
COA 33,706 01/11/16
No. 35,255 State v. Tufts
COA 33,419 01/13/16
No. 35,145 State v. Benally
COA 31,972 01/25/16
No. 35,183 State v. Tapia
COA 32,934 01/25/16
No. 35,298 State v. Holt
COA 33,090 01/25/16
No. 35,101 Dalton v. Santander
COA 33,136 02/17/16
No. 35,198 Noice v. BNSF
COA 31,935 02/17/16
No. 35,249 Kipnis v. Jusbasche
COA 33,821 02/29/16
No. 35,302 Cahn v. Berryman
COA 33,087 02/29/16
No. 35,349 Phillips v. N.M. Taxation
and Revenue Dept.
COA 33,586 03/14/16
No. 35,148 El Castillo Retirement Residences v.
Martinez
COA 31,701 03/16/16
No. 35,297 Montano v. Frezza
COA 32,403 03/28/16
No. 35,214 Montano v. Frezza
COA 32,403 03/28/16
No. 35,386 State v. Cordova
COA 32,820 03/28/16
No. 35,286 Flores v. Herrera COA 32,693/33,413 03/30/16
No. 35,395 State v. Bailey
COA 32,521 03/30/16
No. 35,130 Progressive Ins. v. Vigil COA 32,171 03/30/16
12
Bar Bulletin - March 2, 2016 - Volume 55, No. 9
Opinion on Writ of Certiorari:
No. 33,969
Safeway, Inc. v.
Rooter 2000 Plumbing
Date Opinion Filed
COA 30,196 02/18/16
Petition for Writ of Certiorari Dismissed:
No. 35,398
Armenta v.
A.S. Homer, Inc.
Date Order Filed
COA 33,813 01/04/16
Writs of Certiorari
Writ of Certiorari Quashed:
No. 35,016
State v. Baca
Date Order Filed
COA 33,626 02/18/16
Petition for Writ of Certiorari Denied:
No. 35,728
No. 35,727
No. 35,725
Brannock v.
Lotus Fund
State v. Calloway
State v. Ancira
Date Order Filed
COA 33,950 02/19/16
COA 34,625 02/19/16
COA 34,556 02/19/16
No. 35,724
No. 35,723
No. 35,714
No. 35,415
No. 35,710
No. 35,709
No. 35,708
No. 35,706
No. 35,416
State v. Donovan W.
State v. Lopez
State v. Vega
State v. McClain
Levan v.
Hayes Trucking
Dills v.
N.M. Heart Institute
State v. Hobbs
State v. Jeremy C.
State v. Heredia
COA 34,595
COA 34,602
COA 32,835
12-501
02/19/16
02/19/16
02/19/16
02/17/16
COA 33,858 02/15/16
COA 33,725
COA 33,715
COA 34,482
COA 32,937
02/15/16
02/15/16
02/15/16
02/15/16
Bar Bulletin - March 2, 2016 - Volume 55, No. 9 13
Opinions
As Updated by the Clerk of the New Mexico Court of Appeals
Mark Reynolds, Chief Clerk New Mexico Court of Appeals
PO Box 2008 • Santa Fe, NM 87504-2008 • 505-827-4925
Effective February 19, 2016
Published Opinions
No. 34185 WCA-13-648, E TRUJILLO v LANL (reverse and remand)
2/15/2016
No. 33564 8th Jud Dist Taos CR-12-108, STATE v R CARDENAS (reverse)
2/16/2016
Unublished Opinions
No. 33540 7th Jud Dist Sierra CV-06-173, L DETHLEFSEN v W WEDDLE (affirm)
2/15/2016
No. 33660 7th Jud Dist Sierra CV-06-173, L DETHLEFSEN v W WEDDLE (affirm)
2/15/2016
No. 33760 9th Jud Dist Roosevelt CR-12-24, STATE v A BAEZA (reverse and remand)
2/15/2016
No. 34526 9th Jud Dist Curry LR-13-15, STATE v L GRIMES (reverse)
2/15/2016
No. 34959 11th Jud Dist San Juan LR-14-102, CITY OF FARMINGTON v B FONTENELLE (affirm) 2/15/2016
No. 33653 2nd Jud Dist Bernalillo LR-11-40, STATE v W BARRERAS (affirm)
2/15/2016
No. 34748 2nd Jud Dist Bernalillo CV-12-5685, CITIMORTGAGE v A VARELA (affirm)
2/15/2016
No. 34512 3rd Jud Dist Dona Ana LR-14-24, STATE v A BADONI (affirm)
2/16/2016
No. 34547 8th Jud Dist Taos CR-04-30, STATE v S TOLLARDO (dismiss)
2/16/2016
No. 34904 2nd Jud Dist Bernalillo JQ-15-39, CYFD v SALIMA J (affirm)
2/16/2016
No. 35039 2nd Jud Dist Bernalillo CR-09-3256, STATE v S BROTHERTON (affirm)
2/16/2016
No. 34716 2nd Jud Dist Bernalillo YR-05-23, STATE v R BARELA (affirm)
2/16/2016
No. 34877 11th Jud Dist San Juan CR-12-523, STATE v E FROLICK (reverse and remand)
2/16/2016
No. 35191 2nd Jud Dist Bernalillo CR-14-5653, STATE v C LOPEZ (dismiss)
2/16/2016
No. 34802 3rd Jud Dist Dona Ana JR-14-266, STATE v TAYLOR E (affirm)
2/17/2016
No. 34691 4th Jud Dist Guadalupe CV-14-13, B MCMULLIN v E BRAVO (dismiss)
2/17/2016
No. 34817 2nd Jud Dist Bernalillo CR-12-5736, STATE v F ARAGON (affirm)
2/17/2016
No. 34509 13th Jud Dist Valencia DM-12-41, N BARELA v C DIAZ (dismiss)
2/18/2016
No. 34994 2nd Jud Dist Bernalillo CR-15-325, STATE v D TENORIO (affirm)
2/18/2016
Slip Opinions for Published Opinions may be read on the Court’s website:
http://coa.nmcourts.gov/documents/index.htm
14
Bar Bulletin - March 2, 2016 - Volume 55, No. 9
Clerk’s Certificates
From the Clerk of the New Mexico Supreme Court
Joey D. Moya, Chief Clerk New Mexico Supreme Court
PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
Clerk’s Certificate
of Reinstatement to
Active Status
As of February 10, 2016:
Eileen Baca-Penner
5631 Carson Road
Rio Rancho, NM 87144
505-463-0344
[email protected]
In Memoriam
As of February 3, 2016:
Carla Anne Carter
555 Broadway NE, Suite 200
Albuquerque, NM 87102
As of January 18, 2016:
Jennifer L. Stone
Rodey, Dickason, Sloan, Akin
& Robb, PA
PO Box 1888
Albuquerque, NM 87103
As of January 17, 2016:
Roger E. Yarbro
12231 Academy Rd. NE,
Suite 301, #249
Albuquerque, NM 87111
Clerk’s Certificate of
Admission
On February 16, 2016:
William W. Cason
53 Soaring Hawk Trail
Santa Fe, NM 87508
575-422-7378
[email protected]
On February 16, 2016:
Stephen E. Fogel
Xcel Energy Services, Inc.
816 Congress Avenue,
Suite 1650
Austin, TX 78701
512-236-6922
512-236-6935 (fax)
stephen.e.fogel@xcelenergy.
com
On February 16, 2016:
Gerald Lee Johnson
508 Mechem Drive, Suite B
Ruidoso, NM 88345
575-257-5555
575-257-5588 (fax)
[email protected]
On February 16, 2016:
Preston Randolph Mundt
Kelly Hart & Hallman
201 Main Street, Suite 2500
Fort Worth, TX 76102
817-878-9379
preston.mundt@kellyhart.
com
Clerk’s Certificate
of Change to Inactive
Status
Effective February 15, 2016:
Peter Everett IV
10911 Fourth Street NW
Albuquerque, NM 87114
505-899-4343
505-899-4812
[email protected]
Clerk’s Certificate of
Withdrawal
Effective February 12, 2016:
Mark Carl Meiering
5916 Canyon Vista Drive NE
Albuquerque, NM 87111
Effective February 12, 2016:
Lourdes M. Monserrat
909 Calle Vistoso
Santa Fe, NM 87501
Clerk’s Certificate of
Name Change
As of January 26, 2016:
Jessica L. Streeter f/k/a
Jessica L. Candelaria
Law Offices of the Public
Defender
505 Marquette Avenue NW,
Suite 120
Albuquerque, NM 87102
575-642-5421
[email protected]
Effective February 12, 2016:
William B. Heintz
PO Box 309
Forest Ranch, CA 95942
Bar Bulletin - March 2, 2015 - Volume 55, No. 9
15
Recent Rule-Making Activity
As Updated by the Clerk of the New Mexico Supreme Court
Joey D. Moya, Chief Clerk New Mexico Supreme Court
PO Box 848 • Santa Fe, NM 87504-0848 • (505) 827-4860
Effective March 2, 2016
Pending Proposed Rule Changes
Open for Comment:
Comment Deadline
None to report at this time.
Recently Approved Rule Changes Since
Release of 2015 NMRA:
Second Judicial District
Court Local Rules
LR2-400 Case management pilot program
for criminal cases.
To view all pending proposed rule changes (comment period open or closed),
visit the New Mexico Supreme Court’s website at http://nmsupremecourt.nmcourts.gov.
To view recently approved rule changes, visit the New Mexico Compilation Commission’s website
at http://www.nmcompcomm.us.
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Bar Bulletin - March 2, 2016 - Volume 55, No. 9
02/02/16
Advance Opinions
http://www.nmcompcomm.us/
From the New Mexico Supreme Court and Court of Appeals
From the New Mexico Supreme Court
No. S-1-SC-35410 (filed February 11, 2016)
INQUIRY CONCERNING A JUDGE
No. 2015-049
IN THE MATTER OF SARAH M. SINGLETON,
First Judicial District Judge
PUBLIC CENSURE
RANDALL D. ROYBAL
DEBORAH L. BORIO
Albuquerque, New Mexico
for Judicial Standards Commission
Order and Public Censure
{1}WHEREAS, this matter came on for
consideration by the Court upon the Judicial Standards Commission’s petition to
accept a stipulation agreement and consent
to discipline (Stipulation) entered into between the Commission and Hon. Sarah M.
Singleton (respondent), who is a district
court judge in the First Judicial District;
{2}WHEREAS, in the Stipulation, respondent admits to the following acts:
a.On or about January 24, 2015,
in the case of Alfredo Morga,
et al. v. FedEx Ground Package System, Inc., et al., D101-CV-2012-01906, respondent permitted and engaged
in impermissible ex parte communications with plaintiff ’s
attorney while the case was still
pending before respondent;
b.On or about January 24, 2015,
in the case of Alfredo Morga,
et al. v. FedEx Ground Package System, Inc., et al., D101-CV-2012-01906, respondent created the appearance
of impropriety by engaging
in a phone conversation with
plaintiff ’s attorney that involved substantive matters and
was outside the presence of the
other party or the other party’s
attorney;
{3}WHEREAS, in the Stipulation, respondent admits that she violated Code
JAMES A. HALL
JAMES A. HALL, L.L.C.
Santa Fe, New Mexico
for Respondent
of Judicial Conduct Rules 21-101, 21-102,
21-209(A) and 21-210(A) NMRA;
{4}WHEREAS, in the Stipulation, respondent admits that she engaged in ex
parte communications contrary to the
Code of Judicial Conduct;
{5}WHEREAS, in the Stipulation, respondent denies that she engaged in willful
misconduct and further denies any malice,
corrupt purpose, or dishonesty;
{6}WHEREAS, in the Stipulation, respondent acknowledges, however, that the
facts support a conclusion that she knew or
should have known that her actions were
beyond her lawful authority and that such
conduct falls within the Supreme Court’s
definition of bad faith;
{7}WHEREAS, in the Stipulation,
while the parties agree that violation of
the Code of Judicial Conduct, by itself,
does not necessarily constitute willful
misconduct, respondent acknowledges
and stipulates that the facts and evidence,
individually and taken together, may
constitute willful misconduct in office and
one or more violations of the New Mexico
Code of Judicial Conduct and provide sufficient basis for the New Mexico Supreme
Court to impose discipline pursuant to
Article VI, Section 32, of the New Mexico
Constitution;
{8}WHEREAS, the Stipulation provides
that, in stipulating to discipline, the following non-exclusive factors in Judicial
Standards Commission Rule 30 NMRA
were considered:
a.the misconduct was an isolated
instance;
b.the misconduct occurred in
respondent’s official capacity;
c.the misconduct created a
highly publicized appearance
of impropriety, which reflects
adversely on the judiciary;
d.respondent immediately took
corrective action and disclosed
the ex parte communication to
all parties;
e.respondent showed remorse,
was candid and truthful with
the Commission, and fully
cooperated with the Commission; and
f.respondent is a well-respected
judge with an excellent reputation and has no history of discipline by the Supreme Court;
{9}WHEREAS, in the Stipulation, respondent consents to imposition of a
public censure by the Supreme Court to be
published in the New Mexico Bar Bulletin;
and
{10} WHEREAS, the Court having considered the petition to accept stipulation
agreement and consent to discipline and
having determined that acceptance of the
stipulation is in the best interests of the
judiciary and the public, and the Court
being otherwise sufficiently advised,
Chief Justice Barbara J. Vigil, Justice Petra
Jimenez Maes, Justice Edward L. Chávez,
Justice Charles W. Daniels, and Justice
Judith K. Nakamura concurring;
{11} NOW, THEREFORE, IT IS ORDERED that the petition is GRANTED
and respondent, Hon. Sarah Singleton,
shall abide by all terms of the Stipulation
Agreement and Consent to Discipline;
{12} IT IS FURTHER ORDERED that
this order shall serve as respondent’s PUBLIC CENSURE and shall be published in
the Bar Bulletin; and
{13} IT IS FURTHER ORDERED that
the file is UNSEALED in accordance with
Rule 27-104(B) NMRA.
{14} IT IS SO ORDERED.
BARBARA J. VIGIL, Chief Justice
PETRA JIMENEZ MAES, Justice
EDWARD L. CHÁVEZ, Justice
CHARLES W. DANIELS, Justice
JUDITH K. NAKAMURA, Justice
Bar Bulletin - March 2, 2016 - Volume 55, No. 9
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Advance Opinions
http://www.nmcompcomm.us/
From the New Mexico Supreme Court
No. S-1-SC-34884
INQUIRY CONCERNING A JUDGE
No. 2014-094
IN THE MATTER OF DAVID RAMOS, SR.,
Municipal Court Judge, City of Hurley, New Mexico
PUBLIC CENSURE
RANDALL D. ROYBAL
DEBORAH BORIO
Albuquerque, New Mexico
for Judicial Standards Commission
Public Censure
{1}WHEREAS, this matter came on
for consideration by the Court upon the
Judicial Standards Commission’s petition
to accept a stipulation agreement and
consent to discipline (Stipulation) entered
into between the Commission and Hon.
David Ramos, Sr., (respondent), who is
a municipal court judge in Hurley, New
Mexico;
{2}WHEREAS, in the Stipulation, respondent admits that on or about June
19, 2014, respondent initiated ex parte
communications with Grant County Mag-
18
DAVID RAMOS, SR.
Hurley, New Mexico
for Respondent
istrate Judge Maurine Laney – concerning
a case that was pending before Judge Laney
– in an attempt to personally vouch for
the character of the defendant and obtain
special treatment for the defendant;
{3}WHEREAS, in the Stipulation, respondent admits that he violated Code of
Judicial Conduct Rules 21-101, 21-102,
21-103, 21-204(B) and (C), 21-206(A),
21-209(A), 21-210(A), and 21-303 NMRA;
{4}WHEREAS, in the Stipulation, respondent consents to imposition of a formal mentorship followed by unsupervised
probation for a period of one (1) year and a
public censure by the Supreme Court to be
Bar Bulletin - March 2, 2016 - Volume 55, No. 9
published in the New Mexico Bar Bulletin;
{5}WHEREAS, upon considering the
petition to accept stipulation agreement
and consent to discipline and having determined that acceptance of the stipulation is
in the best interests of the judiciary and the
public, the Court previously granted the
petition and ordered respondent to abide
by all terms of the Stipulation Agreement
and Consent to Discipline;
{6}WHEREAS, respondent has successfully completed his formal mentorship and
is currently serving his one (1)-year term
of unsupervised probation; and
{7}WHEREAS, in light of the foregoing, and the Court having considered the
stipulation agreement and consent to the
imposition of a public censure and being
otherwise sufficiently advised, Chief Justice Barbara J. Vigil, Justice Petra Jimenez
Maes, Justice Edward L. Chávez, Justice
Charles W. Daniels, and Justice Judith K.
Nakamura concurring;
{8}NOW, THEREFORE, IT IS ORDERED that respondent, Hon. David
Ramos, Sr., is hereby issued a PUBLIC
CENSURE that shall be published in the
Bar Bulletin. IT IS SO ORDERED.
BARBARA J. VIGIL, Chief Justice
PETRA JIMENEZ MAES, Justice
EDWARD L. CHÁVEZ, Justice
CHARLES W. DANIELS, Justice
JUDITH K. NAKAMURA, Justice
Advance Opinions
http://www.nmcompcomm.us/
From the New Mexico Supreme Court
Opinion Number: 2015-NMSC-035
No. S-1-SC-35160 (filed October 30, 2015)
KAREN ROBINSON, IN HER capacity as County Assessor,
Plaintiff-Appellee,
v.
BOARD OF COMMISSIONERS OF THE COUNTY OF EDDY,
ROXANNE LARA, JOHN VOLPATO, JR., GUY E. LUTMAN, LEWIS DERRICK,
AND TONY HERNANDEZ,
Defendants-Appellants.
CERTIFICATION FROM THE NEW MEXICO COURT OF APPEALS
STEVEN L. BELL, District Judge
MATTHEW T. BYERS
CARAWAY, TABOR & BYERS, L.L.P.
Carlsbad, New Mexico
for Appellants
Opinion
Richard C. Bosson, Justice
{1}In 1986 our Legislature established a
county property valuation fund to assist
county assessors in fulfilling their statutory obligations to maintain current and
correct values of all property within their
jurisdictions. See NMSA 1978, § 7-3616(A) (2000); NMSA 1978, § 7-38-38.1(C)
(2007). The County Assessor for Eddy
County (County Assessor or Assessor)
sought to use some of these funds to contract with a private company for technical
assistance in locating and valuing oil and
gas property. The County Commission
for Eddy County (County Commission)
refused to approve the proposed plan
because it believed that a contract to pay
private, independent contractors to assist
the County Assessor in the performance
of the Assessor’s statutory duties exceeded
the Commission’s lawful authority.
{2} We are persuaded that the County Commission does have such authority under law,
and that the contract under consideration
here would not exceed that authority or be
otherwise ultra vires. The district court having previously issued a declaratory judgment
to that same effect, we affirm.
BACKGROUND
{3}The parties presented this case to the
district court on stipulated facts. We extract from the record the most salient of
BRIDGET ANN JACOBER
Santa Fe, New Mexico
for Appellee
these stipulations to provide background
and context.
1.The current Property Tax
Code (“PTC”) was enacted
in 1973 under Chapter 258.
2.The PTC provides for “county
property valuation fund[,”]
NMSA 1978, §[ ]7-38-38.1
enacted in 1986. This law is
remedial legislation intended
to provide assessors with
resources (“the 1% fund”) to
meet their statutory obligation to maintain current and
correct values of all property within their jurisdiction.
[Section 7-36-16].
3.Expenditures from the county property valuation fund
shall be made pursuant to a
property valuation program
presented by the county assessor and approved by a
majority of the county commissioners.
4.Beginning in 2007, Karen
Robinson, as Eddy County
Assessor, requested approval
from the commissioners to
use the 1% fund to contract
for technical assistance in
locating and valuing oil and
gas property. Exhibit 5 (Eddy
County Board of Commissioners Minutes).
5.Each year, since 2008, the
Eddy County Assessor submitted a property valuation
program, which included an
oil and gas audit. Each year a
majority of the Eddy County
commissioners approved the
Assessor’s property valuation program. See[] Exhibit 6
(2008 Budget Report); Exhibit
7 (2009 Budget Report); Exhibit 8 (2013 Budget Report).
6.The Eddy County commissioners, however, would not
agree that the oil and gas audit could be performed with
appraisal assistance procured
through an independent contractor, even though monies
available in the Assessor’s
1% fund would pay the costs
of the audit. Exhibit 5 (Minutes); Exhibit 9 (April 18,
2008 Letter from Robinson
to PTD Director).
7.By constitutional provision
and legislation, New Mexico
counties are authorized to
enter into contracts. . . .
. . . .
9.The sole prohibition on contracting by counties relates to
transactions favoring persons
who have been county employees within the preceding
year. NMSA 1978, §[ ]4-4424 [(1969, repealed 2011)].
. . . .
11.In 2007 and 2012, with the
consent of the Eddy County
Commission, the Assessor issued a Request for Proposals
for an Eddy County Personal
Property Audit. Exhibit 11
(Request for Proposals for
Eddy County Oil and Gas
Personal Property Audit
Bid # B-07-20); Exhibit 12[]
(Request for Proposals B-1123 Eddy County Oil and Gas
Personal Property Audit).
12.A fter evaluating the RFP
responses in 2012, the Eddy
County Assessor sought to
have the Eddy County commissioners contract with the
successful bidder, using the
Assessor’s 1% fund to pay for
the contract services. Exhibit
5 (Minutes of March 14, 2012
Eddy County Commission
meeting).
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Advance Opinions
13.The Eddy County commissioners asserted that the Assessor did not have the legal
authority to use contractual
assistance to conduct an oil
and gas property audit. Id.
14.The commissioners relied on
Fancher v. Board of Commissioners, [1921-NMSC-039,
28 N.M. 179, 210 P.237,] in
refusing to execute a contract
to hire the technical assistance needed by the Assessor.
Exhibit 5 (Minutes of March
14, 2012 Eddy County Commission meeting).
. . . .
17.The Eddy County commission also relies on the argument that the legislature’s
assignment of the “sole responsibility” and authority
at the county level for property valuation maintenance,
subject only to the general
supervisory powers of the
director (NMSA 1978, §[
]7-36-16(A)) prohibits the
Assessor from contracting
for appraisal assistance.
18.In other statutes, the legislature has employed the terms
“sole responsibility” and “sole
authority” to allocate liability
and delegate power, not to
restrict an official’s actions.
Exhibit 4 (Fastcase search of
term “sole authority”).
19.At the 2013 Eddy County
commission budget hearings,
the commissioners stated
that if there were a court
order declaring that the Assessor is permitted to utilize
contractual assistance, the
commissioners would sign
the contract with the successful bidder responding
to the 2012 RFP. Exhibit 5
(Minutes of March 14, 2012
Eddy County Commission
meeting).
. . . .
25.A determination of the Assessor’s legal authority to utilize contractual technical assistance in assessing property
will impact all thirty-three
assessors in New Mexico.
{4}As noted in the stipulated facts, the
Legislature created the county property
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valuation fund to assist county assessors
to maintain “current and correct values of
property” within their jurisdiction. Section
7-36-16(A). Towards that end, the Legislature provided that “[e]xpenditures from
the county property valuation fund shall
be made pursuant to a property valuation
program presented by the county assessor
and approved by the majority of the county
commissioners.” Section 7-38-38.1(D).
The fund is created through a 1% distribution of tax revenues from the county
treasurer into that fund. The Legislature
created this fund to provide county assessors with essential resources necessary to
meet their statutory obligations.
{5}In this instance, the County Assessor duly submitted a “property valuation
program” to the County Commission
that included contracting with a private
company to provide expert assistance
in the valuation of oil and gas property
located within the county, such as equipment and machinery. In withholding its
approval, the only concern expressed by
the County Commission was whether it
was lawful to use money from the 1% fund
to hire private independent contractors, as
opposed to county employees, to provide
technical assistance to the County Assessor. Importantly, the County Commission
has never questioned the competency of
the company chosen by the Assessor, nor
is there a factual debate about whether the
County Assessor actually needs technical
assistance as she claims.
{6}After the County Commission withheld its approval, the County Assessor filed
a declaratory judgment action asking the
district court to determine whether the
County Assessor and the County Commission had the authority to contract with
an independent contractor to assist the
County Assessor in valuing property. The
district court granted the declaratory judgment, concluding that “the Eddy County
Board of Commissioners has legal authority to contract for technical assistance for
the Assessor in performing her duties of
maintaining the property tax rolls as correct and current.”
{7}Dissatisfied with the district court’s
ruling, the County Commission appealed
to our Court of Appeals. The Court of
Appeals heard oral argument and then, on
its own motion, certified the case to this
Court pursuant to Rule 12-606 NMRA.
Robinson v. Bd. of Comm’rs, No. 32,998,
order of certification (N.M. Ct. App. Mar.
12, 2015). The Court of Appeals advised us
that the appeal presents significant ques-
Bar Bulletin - March 2, 2016 - Volume 55, No. 9
tions of law and issues of substantial public
interest of potential state-wide impact that
should be determined by this Court. Id. ¶¶
3, 4. Of particular concern to the Court
of Appeals was the 1921 opinion from
this Court in Fancher, 1921-NMSC-039,
that needed to be addressed by this Court
before the contract could proceed. We accepted certification.
DISCUSSION
{8} This case is one of statutory construction. As such, we review the decision of the
district court de novo. See Marbob Energy
Corp. v. N.M. Oil Conservation Comm’n,
2009-NMSC-013, ¶ 5, 146 N.M. 24, 206
P.3d 135.
{9}Encompassed within the stipulated
facts, the parties agree that counties in New
Mexico have constitutional and statutory
authority to contract with outside parties.
The parties further agree that “[t]he sole
prohibition on contracting by counties relates to transactions favoring persons who
have been county employees within the preceding year,” which, of course, is not at issue
in this case. See § 4-44-24 (1969, repealed
2011). Therefore, nothing in the statutory
powers of counties stands in the way of the
County Assessor’s desired contract.
{10} We turn, then, to the statutory powers of county assessors. The Property Tax
Code, NMSA 1978, §§ 7-35-1 to -38-93
(1973, as amended through 2012), makes a
general grant to county assessors of authority over valuation of property. “The county
assessor is responsible and has the authority
for the valuation of all property subject to
valuation for property taxation purposes in
the county . . . .” Section 7-36-2(A). Section
7-36-16(A) specifically states with respect
to property valuation maintenance:
County assessors . . . shall also
implement a program of updating
property values so that current
and correct values of property
are maintained and shall have sole
responsibility and authority at the
county level for property valuation
maintenance, subject only to the
general supervisory powers of the
director [of the state property tax
department].
(Emphasis added.)
{11} Clearly, the Legislature has reposed
in county assessors the responsibility for
maintaining “a program of updating property values” to reflect “current and correct
values of property.” See id. Simply put,
the county assessor is in charge; it is the
responsibility of that office to get the job
done. The statute imposes no restrictions
Advance Opinions
on how county assessors are to exercise
that authority. The county commission’s
job is to assist the assessor. The Property
Tax Code also allows a county assessor,
subject to concurrence by the county commission, to request the director of the state
Property Tax Division to provide technical assistance services in the valuation of
major industrial or commercial properties
subject to valuation by the assessor. See
Section 7-36-19.
{12} To provide assessors with additional
financial resources, the Legislature created the county property valuation fund
in 1986. See § 7-38-38.1(C). Historical
context is important. Prior to creating
this fund, county assessors had the same
responsibility for property valuation
maintenance, but without the necessary
financial resources to achieve that goal in
a timely manner. This Court addressed this
seeming paradox in Appelman v. Beach,
1980-NMSC-041, 94 N.M. 237, 608 P.2d
1119.
{13}In Appelman, the Bernalillo County
Assessor began to reassess property values in 1974. 1980-NMSC-041, ¶ 3. By
1976, however, only 16% of property in
the county had been reassessed. Id. This
ultimately led to different tax rates for
equivalent property which posed serious constitutional problems. Id. ¶ 9. As
the Appelman Court described it, “[i]t is
unlawful and grossly inequitable for one
set of taxpayers to pay on market value
and others to be charged at a much lower
rate, as is indicated in this record.” Id. ¶
16. Bernalillo County conceded that the
reappraisal program was progressing too
slowly, but the record suggested that “the
County did not have the manpower and
money to have had all the county property
reassessed” in a timely fashion. Id. ¶ 12.
{14} This Court, speaking in an unusually blunt manner, sharply criticized the
Bernalillo County Commission for not
allocating necessary resources to the
Bernalillo County Assessor. See id. ¶ 16.
Recognizing that the problem of scarce
resources existed throughout the state, this
Court observed: “It is common knowledge,
of which we take judicial notice, that these
flagrant inequities exist throughout the
state. Public officials who are responsible
for reappraisal programs mandated by
the Legislature are to be condemned for
http://www.nmcompcomm.us/
permitting such manifest discrimination.”
Id. (emphasis added). This Court does not
“condemn” county officials lightly. We did
so in this instance because of our grave
concern that county assessors were left
without the necessary financial tools to
do a job—of constitutional import—that
the Legislature had assigned to them. Our
opinion in Appelman was intended as a call
to action.
{15} Only six years later, the Legislature
enacted Section 7-38-38.1, a remedial statute seemingly in response to this Court’s
criticism in Appelman.1 The statute created
a permanent source of additional revenue
and directed county assessors to use those
funds to achieve fair and timely reappraisal
programs, exactly what the County Assessor seeks in this instance.
{16} Section 7-38-38.1 imposed no restrictions on the use of those funds other
than it be part of a “property valuation program presented by the county assessor and
approved by the . . . county commission[].”
Section 7-38-38.1(D). The statute makes
no attempt to restrict an assessor’s options or discretion, such as whom to hire
or with whom to contract. And of course,
the statute does not preclude an assessor
from securing additional expertise, either
by way of additional employees or independent contractors.
{17} We can safely assume that the Legislature understood the need for essential
resources at the county level and left it to
county assessors and their county commissioners to decide how those resources
should be spent, including the need for
specialized expertise when it came to
valuing personal property of a technical
nature. The statute should be given an
interpretation consistent with meeting its
declared purpose.
{18} “Our primary goal when interpreting statutes is to further legislative intent.”
State v. Strauch, 2015-NMSC-009, ¶ 13,
345 P.3d 317 (internal quotation marks
and citation omitted). We “examine the
plain language of the statute as well as
the context in which it was promulgated,
including the history of the statute and
the object and purpose the Legislature
sought to accomplish.” Id. ¶ 14 (internal
quotation marks and citation omitted).
We need to “promote the [L]egislature’s
accomplishment of its purpose.” Id. ¶ 17
(internal quotation marks and citation
omitted). Thus, the burden in this appeal
is on the County Commission to persuade
us how the Legislature could have spoken
in such broad terms, unadorned by any
express restrictions on county assessors,
yet somehow have intended that the fund
could not be used to contract for the necessary expertise.
{19} In an attempt to meet this burden,
the County Commission argues that the
Legislature, in delegating sole responsibility for property valuation maintenance to
county assessors, intended that only assessor employees, and not private contractors,
could assist in the revaluation process,
even for technical property like oil and
gas equipment that might require specialized expertise. The County Commission
relies primarily upon a nearly centuryold decision from this Court, Fancher,
1921-NMSC-039, for the proposition that
where the Legislature gives sole authority
to a public entity to perform a particular
function, all other persons or entities are
excluded from participating in carrying
out that function. Fancher is pivotal to the
County Commission’s case. If the County
Commission reads Fancher correctly, then
the County Assessor may not proceed with
her contract with a private company. If the
County Commission is not correct about
Fancher, then the contract is lawful, and the
County Commission’s refusal to approve
must give way. Accordingly, we now turn
to a careful analysis of that 1921 opinion.
{20}In Fancher, the county commissioners for Grant County entered into
a contract with Fancher Company for
three purposes: 1) to make a complete
record index system of all real property
titles and provide it to the county clerk,
2) to furnish the county assessor with a
complete and correct classification and
indexing system for taxable properties
located within the county including
previously omitted properties, and 3) to
transcribe and reproduce any records
deemed necessary by the county clerk.
1921-NMSC-039, ¶ 1. Despite having
satisfactorily completed the job with respect to both county offices, the county
clerk and the county assessor, Fancher
Company was denied payment for its
services because the contract was deemed
unlawful and ultra vires. Id. ¶¶ 3, 4.
1Initially, the County Commission argued that the County Assessor did not present any direct evidence that the Legislature enacted Section 7-38-38.1 in response to Appelman. However, during oral argument to this Court the County Commission conceded
that the statute was a remedial statute in response to Appelman, but maintained that it still does not authorize the County Assessor
to contract out her duties. The County Commission argued that the fund was only for hiring new employees.
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{21} On appeal, this Court agreed that
the contract was ultra vires and void because it usurped the duties of the respective county officials who were specifically
assigned these same functions by express
legislative direction. See id. ¶ 56; see also
id. ¶ 11 (“Where authority is given to do
a particular thing and the mode of doing
it is prescribed, it is limited to be done in
that mode; all other modes are excluded.
This is a part of the so-called doctrine
of expressio unius est exclusio alterius.”
(internal quotation marks and citation
omitted)). This Court stated that “[t]he
test is, not whether the duty is primary
or secondary, but whether provision has
been made by law for the accomplishment
of the end, or the doing of the work, or the
performance of the service, for the benefit
of the public, in its organized capacity.” Id.
¶ 54. We further stated that “[w]hether the
agency created is as competent and capable
as some private individual is to perform
the service is not the subject of inquiry by
the courts. This is a matter for legislative
consideration exclusively.” Id.
{22} We agree with our predecessors that
the question at issue ultimately comes to
“a matter for legislative consideration,”
in other words, legislative intent. Id. 100
years ago, in the Property Tax Code of
1915, the Legislature expressly assigned
in great detail certain responsibilities to
county officials and made its intent clear
that those officials were to carry out those
responsibilities, leaving no room for private assistance no matter how competent
or helpful. See Fancher, 1921-NMSC-039,
¶ 55-56. It was, and still is, a matter of
legislative intent. The question then arises
whether the modern tax code delegates in
a similarly micro-managing manner, not
only of function but in its choice of agent
to perform that function. We begin by
examining how things were done a century
ago as described in the Fancher opinion.
{23} We look first to county clerks, whose
responsibilities under the Property Tax
Code of 1915 included recording and
maintaining land title records. Fancher,
1921-NMSC-039, ¶¶ 6-7. Anticipating
the need for additional work with regard
to land title records, the Legislature provided that “whenever, in the opinion of the
board of county commissioners” it might
be necessary “to have a complete and accurate index made of all instruments of
record affecting real property,” then county
commissions “are hereby authorized to
have such index made by the county clerk
of said county.” Id. ¶ 6 (internal quotation
22
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marks and citation omitted). In other
words, when the need for an index arises,
the county was told to look to the county
clerk. Since the Legislature had specified
not only the subject matter (land title
index) but also the agent to perform that
function (county clerk), then the Legislature had left no room for the county
commission to contract with someone else
for the same purpose. It is not clear from
the opinion whether the county clerk had
even agreed to the imposition of a private
contractor upon its functions.
{24}The Fancher Court came to a similar
conclusion with respect to the county assessor and the state tax commission, both
directed by statute to locate properties
omitted from the tax rolls and include
them in the proper records. When the
county commission contracted with
Fancher Company for completion of this
task, this Court held the contract invalid,
superseded by express assignment of that
same function to the proper county officials. Fancher, 1921-NMSC-039, ¶¶ 55-56.
In Fancher, it appears that the contract may
have been opposed by the assessor and the
state tax commission or at least that they
may not have been willing participants.
Provision, which the Legislature
deemed sufficient, was made
for officers and agents of such
tax commission, and the compensation thereof. To hold that,
notwithstanding such provisions,
it would be competent for the
county commissioners to employ
other agencies, at public expense,
to do this work thus provided for,
would be to subject the public
revenues of the different counties
to dissipation at the whim of the
county commissioners.
Id. ¶ 55 (emphasis added).
{25} We note that during those early days
of our statehood, this was not the first instance of conflict between county officials,
like assessors and clerks assigned certain
duties by statute, and county commissions
seemingly dissatisfied with those officials
who contracted with outside agents to
perform those same duties. See State ex
rel. Miera v. Field, 1918-NMSC-071, ¶ 3,
24 N.M. 168, 172 P. 1136 (“Where, by law,
the duty of performing certain work is cast
upon a designated county official for which
compensation is provided by law, it is not
competent for the board of county commissioners to employ other persons to do
the work required of such county official
and to pay for such services.”)
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{26} Today, of course, the Property Tax
Code has been completely rewritten; the
language from 1915 has disappeared into
history. That kind of detailed control over
the means of implementation has largely
been replaced by general grants of authority and responsibility, leaving the details to
the discretion of the county official. And
most importantly, the 1986 Legislature
recognized a specific problem—unacceptable delays in updating property valuations—and created a specific answer—the
1% fund—to enable assessors to finish the
job without the restrictions of 100 years
ago.
{27} If the legal threat to the Fancher
Court was the county commission usurping the authority of local officials, this
case presents the opposite scenario. It is
the County Assessor who requests this
contract to assist her in satisfying legislative intent, not undermining it. As a helpful analogy to Fancher, if the Legislature,
in creating the property valuation fund,
had directed that the fund could be used
to hire additional employees to assist in
valuation maintenance, then perhaps, by
negative inference, the Legislature could
be said to have excluded anyone else such
as independent contractors. But that is not
what happened here. The Legislature made
no effort to instruct assessors on how to
utilize this fund.
{28} We conclude, therefore, that the
Legislature intended to leave it to the professional discretion of those same assessors
to decide how best to achieve the statutory
goal of current and correct valuation of all
property within the county. This is especially the case given the exhortations of
this very Court over 30 years ago in Appelman to get the job done. 1980-NMSC-041,
¶ 16.
{29} The County Commission points out
that Section 7-36-16(A) uses language that
appears to delegate exclusive authority to
the Assessor to update property values
which would preclude anyone else. See id.
(County assessors “shall have sole responsibility and authority at the county level for
property valuation maintenance.”). But we
see no contradiction. The County Assessor
seeks to contract for technical assistance
to enable her, the County Assessor, to
maintain current and correct property
valuations. She has “sole responsibility”
over valuations. The County Assessor is
not being displaced as were the officials in
Fancher; she remains at the center of the
process. Final valuations will issue from
her office under her signature as the law
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envisions. Additionally, the parties stipulated in this case that “[i]n other statutes,
the [L]egislature has employed the terms
‘sole responsibility’ and ‘sole authority’ to
allocate liability and delegate power, not
to restrict an official’s actions.”
{30} The County Commission also
directs our attention to a provision in
the Property Tax Code that allows the
state Property Tax Division to contract
with counties and provide technical assistance to county assessors regarding the
valuation process. See Section 7-36-19.
Again relying on Fancher, the County
Commission asserts that this option for
the County Assessor precludes all others.
But if we were to accept that assertion,
we would be forced to turn a blind eye
to what the Legislature did subsequently
in 1986 when it created the property
valuation fund. Obviously, the means
previously available to county assessors to
maintain current and correct valuations
were deemed insufficient to complete the
job. This Court said as much in Appelman.
It would make little sense for the Legislature to have created a new fund to address
an ongoing problem of constitutional
proportions, but then to limit assessors’
remedies to what had been available all
along.
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{31} The County Commission also points
to legislative history of previous iterations
of the Property Tax Code, including a time,
1933, when the Property Tax Code was
changed to expressly authorize assessors
to hire independent contractors, and then
years later in 1969 when that authority
was withdrawn in favor of better training
for assessor employees. Compare 1933
N.M. Laws, ch. 107, § 16 with 1969 N.M.
Laws, ch. 219, § 16 (repealing the 1933
provision) and 1969 N.M. Laws, ch. 269,
§§ 1-3 (providing for training in property
appraisal and property tax administration
and increased pay for county assessors
with additional training). We are not
persuaded. Better training and education
of assessor employees is consistent, not
inconsistent, with the goal evidenced by
creating the property valuation fund—
namely, additional resources to enable
county assessors to complete the job of periodic valuation maintenance. The assessor
might not be authorized, for example, to
replace employees with a staff of independent contractors, but that is not the same
as allowing assessors to supplement their
employees with specialized technical assistance not available from staff employees.
{32} Finally, the County Assessor has
pointed out that other counties within
New Mexico have contracted for years with
private companies—with state approval—
to assist their county assessors, in some
cases providing the type of precise valuation expertise for oil and gas properties at
issue in this case. The County Commission
acknowledges the validity of this evidence
and that a ruling in its favor might have a
negative impact on these other counties.
Interpreting the law as we do, to authorize
the County Assessor to contract for technical assistance from private contractors, we
anticipate no such negative impact.
CONCLUSION
{33} We hold that state law does not prohibit the Eddy County Commission from
approving a contract with an independent
contractor to assist the County Assessor, at
her request, in valuing property. Accordingly, we affirm the declaratory judgment
to that effect previously entered by the
district court.
{34} IT IS SO ORDERED.
RICHARD C. BOSSON, Justice
WE CONCUR:
BARBARA J. VIGIL, Chief Justice
PETRA JIMENEZ MAES, Justice
EDWARD L. CHÁVEZ, Justice
CHARLES W. DANIELS, Justice
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Certiorari Denied, October 23, 2015, No. 35,532
From the New Mexico Court of Appeals
Opinion Number: 2015-NMCA-111
No. 32,830, (filed July 28, 2015)
WOODY INVESTMENT, LLC and PIPKIN CORPORATION,
Plaintiffs-Appellants/Cross-Appellees,
v.
SOVEREIGN EAGLE, LLC and DAWSON GEOPHYSICAL COMPANY,
Defendants-Appellees/Cross-Appellants.
APPEAL FROM THE DISTRICT COURT OF DE BACA COUNTY
DAVID P. REEB JR., District Judge
HEIDEL, SAMBERSON, NEWELL, COX
& MCMAHON
MICHAEL NEWELL
Lovington, New Mexico
for Appellants/Cross-Appellees
CAVIN & INGRAM, P.A.
STEPHEN D. INGRAM
Albuquerque, New Mexico
for Appellees/Cross-Appellants
Opinion
to conduct geophysical seismic surveys in
what is called the Tule Field in order to
evaluate potential future oil and gas operations. The surveys were to be conducted on
land that Woody and Pipkin Corporation
(Pipkin) either owned or leased from the
State Land Office.
{3}Pursuant to SOPA, Sovereign gave
notice of the planned geophysical survey to
Woody and Pipkin (Plaintiffs)1 and when
the parties were not able to agree on the
terms of a surface use and compensation
agreement, Sovereign posted a SOPA bond
to enter upon Plaintiffs’ lands and conduct
the geophysical survey. See Section 70-12-5
(setting forth procedures required under
SOPA before entry upon lands to conduct
oil and gas operations, including advanced
notice and requirements for negotiating a
proposed surface use and compensation
agreement that governs operations and
compensation for damages to the surface);
see Section 70-12-6 (stating that when no
surface use and compensation agreement
has been made, the operator may enter the
surface owner’s property and conduct oil
and gas operations after posting a bond).
Michael E. Vigil, Judge
{1}This is a case that involves claims
brought under the Surface Owners Protection Act (SOPA), NMSA 1978, §§ 70-12-1 to
-10 (2007), and the common law as a result
of geophysical seismic surveys conducted
on lands owned or leased by Plaintiffs. The
only claims that proceeded to trial were
Plaintiffs’ claims of negligence and trespass
because the district court granted summary
judgment on Plaintiffs’ SOPA and breach of
contract claims. The jury determined there
was no liability for negligence and trespass,
and Plaintiffs appeal from the summary
judgments. We reverse. We also briefly address Plaintiffs’ argument that the district
court erred in not allowing their expert
witness on damages to testify at the trial
and Defendants’ cross-appeal.
BACKGROUND
{2}Sovereign Eagle, LLC (Sovereign) is
a gas and oil operator that operates wells
on lands owned by Woody Investments,
LLC (Woody). Sovereign contracted with
Dawson Geophysical Company (Dawson)
KARIN V. FOSTER
CHATHAM PARTNERS, INC.
Albuquerque, New Mexico
for Amicus Curiae
In addition, Dawson obtained a permit
from the State Land Office to conduct the
geophysical survey.
{4} Dawson then entered Plaintiffs’ lands
and conducted the geophysical survey.
In order to conduct the survey, cables
and seismic equipment were laid on the
surface by foot, ATVs, pickup trucks, and
vibroseis trucks equipped with balloon
tires. Geophysical seismic surveys generate, record, and analyze soundwaves that
travel through the earth and are reflected
back from the different types of rock below
the surface. The two main methods used to
generate seismic waves are (1) the drilling
of shot holes and the detonation of explosives placed in the holes, and (2) vibroseis.
In this case, shot holes were not drilled and
no detonating explosives were used. Where
vibroseis is used, a line or grid of receivers,
or geophones, is placed on the surface connected with cables for transmission of the
data to a centralized vehicle. A vibroseis
truck weighs 62,000 pounds and the truck’s
“terra tires” or balloon tires displace the
weight of the vehicle to eighteen pounds
per square inch. The soundwaves caused by
the vibrations of the vibroseis truck bounce
off geologic formations beneath the earth
and return to the surface to be captured by
the geophones. When the detailed images
are combined with other information, geologists can map seismic geomorphology
and reservoir quality. Dawson conducted a
two-dimensional survey, in which seismic
readings were taken from points laid down
a straight line, as well as a three-dimensional survey, in which seismic readings were
taken from points laid out in a grid.
{5} After the survey was completed, Plaintiffs filed a complaint against Sovereign
and Dawson (Defendants) seeking damages for negligence, breach of contract,
violation of SOPA, and trespass. The district court granted summary judgment on
the SOPA and breach of contract claims,
and trial proceeded on the negligence
and trespass claims. The jury found that
Defendants were not liable on these claims.
Plaintiffs appeal from the summary judgments granted to Defendants on the SOPA
and breach of contract claims. Plaintiffs
also appeal from the order of the district
court that barred Plaintiffs’ expert from
expressing his opinion on damages.
DISCUSSION
{6} The standard we apply in reviewing an
order granting summary judgment is well
1Monte Best was also an original plaintiff, but he was dismissed as a party early in the litigation and did not participate in any
further proceedings.
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settled. “We review the district court’s
decision to grant summary judgment de
novo. Summary judgment is appropriate
where the facts are undisputed, and the
movant is entitled to judgment as a matter
of law. We review the facts in a light most
favorable to the nonmoving party. Further,
all reasonable inferences from the record
should be made in favor of the nonmoving
party. New Mexico courts view summary
judgment with disfavor.” T.H. McElvain Oil
& Gas Ltd. P’ship v. Benson-Montin-Greer
Drilling Corp., 2015-NMCA-004, ¶ 19,
340 P.3d 1277, cert. granted, 2014-NMCERT-012, 344 P.3d 988 (alterations,
internal quotation marks, and citations
omitted). To the extent applicable, we discuss additional authorities and facts which
pertain to each issue discussed.
A. The SOPA Claim
{7}The district court granted summary
judgment on the SOPA claim based on its
conclusion that “Defendants’ geophysical
survey is a non-surface disturbing activity as defined in SOPA §70-12-5(A) and
not an oil and gas operation as defined in
SOPA” and therefore “Plaintiffs have no
claim for damages under SOPA resulting
from Defendants’ geophysical survey.” For
the following reasons, we conclude that
the district court erred as a matter of law
by concluding that Defendants’ geophysical seismic survey is not an “oil and gas
operation” covered by SOPA.
{8} “Statutory interpretation is a question
of law, which we review de novo.” First
Baptist Church of Roswell v. Yates Petroleum
Corp., 2015-NMSC-004, ¶ 9, 345 P.3d 310
(internal quotation marks and citation
omitted). In interpreting a statute, our
primary goal is to ascertain and give effect to the Legislature’s intent. Id. “Under
the rules of statutory construction, when a
statute contains language which is clear and
unambiguous, we must give effect to that
language and refrain from further statutory
interpretation.” Id. (alteration, internal
quotation marks, and citation omitted).
We look at the statute as a whole. Id.
{9} The purpose of SOPA is to balance surface owners’ and mineral lessees’ interests.
SOPA aims to minimize damage and loss
of available surface for agriculture caused
by oil and gas operations, Section 70-12-4,
to promote a fair negotiation process between the surface owner and the mineral
lessee, Section 70-12-5, and to not delay
exploration and development of minerals,
Section 70-12-6.
{10} Before the enactment of SOPA,
surface owners could only recover dam-
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age to the land if they had a contract with
oil and gas operators that had an express
reclamation provision or if the oil and gas
operators unreasonably, negligently, or
excessively used the land. See Amoco Prod.
Co. v. Carter Farms Co., 1985-NMSC-071,
¶¶ 11-12, 103 N.M. 117, 703 P.2d 894, abrogated by McNeill v. Burlington Res. Oil &
Gas Co., 2008-NMSC-022, 143 N.M. 740,
182 P.3d 121. However, SOPA now imposes
strict liability upon oil and gas operators
for surface damage caused by oil and gas
operations. Section 70-12-4 directs:
A. An operator shall compensate the surface owner for
damages sustained by the surface
owner, as applicable, for loss
of agricultural production and
income, lost land value, lost use
of and lost access to the surface
owner’s land and lost value of
improvements caused by oil and
gas operations. The payments
contemplated by this section only
cover land affected by oil and gas
operations.
B. An operator shall not be
responsible for allocating compensation between the surface
owner and any tenant, except that
an operator shall compensate a
tenant of the surface owner for
any leasehold improvements
damaged as a result of the operator’s oil and gas operations if the
improvements are approved and
authorized by the surface owner.
The compensation shall equal the
cost of repairing or replacing the
improvements.
C. An operator shall reclaim
all the surface affected by the
operator’s oil and gas operations.
{11} Defendants argue that geophysical
seismic surveys are preliminary to actual
oil and gas operations and therefore cannot
be included within “oil and gas operations.”
Defendants’ argument stems from the SOPA
notice provisions that differentiate between
“activities that do not disturb the surface,”
under Section 70-12-5(A), and “oil and gas
operations” outlined under the more extensive notice provision of Section 70-12-5(B).
We agree that conducting a geophysical
survey only requires five days notice under
Section 70-12-5(A), but we do not agree
that such a survey is excluded from SOPA’s
definition of “oil and gas operations.”
{12} The Legislature broadly defined
“oil and gas operations” to include “all
activities affecting the surface owner’s
land that are associated with exploration,
drilling or production of oil or gas[.]” See
§ 70-12-3(A) (emphasis added). From
our analysis of New Mexico and out-ofstate statutes and case law, a geophysical
seismic survey—whether it disturbs the
surface or not—is an exploratory activity.
“Exploration” is “[t]he search for oil and
gas. Exploration operations include: aerial
surveys, geophysical surveys, geological
studies, core testing, and the drilling of test
wells (wildcat wells).” Howard R. Williams
& Charles J. Meyers, Manual of Oil & Gas
Terms 331-32 (7th ed. 1987) (emphasis
added).
{13} Other states which have surface
owner protection statutes also include
geophysical seismic surveys within “exploration” and “oil and gas operations.”
See Okla. Stat. Ann. tit. 52, § 318.21(B)
(1) (2012) (defining “seismic exploration”
as “the drilling of seismograph test holes
and use of surface energy sources such as
weight drop equipment, thumpers, hydropulses or vibrators, and any of the activities
associated therewith”); Mont. Code. Ann.
§ 82-10-502(5) (2013) (defining “oil and
gas operations” as “the exploration for or
drilling of an oil and gas well that requires
entry upon the surface estate . . . and the
production operations directly related to
the exploration or drilling”); Wyo. Stat.
Ann. § 30-5-401(a)(iv) (2005) (defining
“oil and gas operations” as “the surface disturbing activities associated with drilling,
producing and transporting oil and gas,
including the full range of development activity from exploration through production
and reclamation of the disturbed surface”).
{14} In the limited New Mexico case law
dealing with geophysical seismic surveys,
our courts have used the terms “geophysical” or “seismic” surveys in the context of
oil and gas exploration. For example, Dean
v. Paladian Exploration Co., 2003-NMCA049, 133 N.M. 491, 64 P.3d 518, deals
with surface damage caused by seismic
explorations similar to the explorations
that Dawson—who was also a defendant in
Dean—conducted on the Woody property
here. We used “geophysical operations”
interchangeably with “seismic exploration”
in Dean: “Defendant . . . obtained the authority to conduct geophysical operations
. . . pursuant to certain seismic permits . . . .
Dawson commenced seismic explorations
in the fall of 1994.” Id. ¶ 3. Also in Dean,
like the present case, Dawson conducted a
3-D seismic survey and the Court referred
to the survey as “3-D seismic exploration.”
Id. ¶ 4. The surface owners in Dean also
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experienced similar damages: “the tracks
and dust created by Defendants’ trucks
during the seismic exploration damaged
his Blue Gramma grass[.]” Id. ¶ 17.
{15} Our case law has long accepted that
geophysical seismic surveys are part of oil
and gas exploration. See Hondo Oil & Gas
Co. v. Pan Am. Petroleum Corp., 1963NMSC-204, ¶ 1, 73 N.M. 241, 387 P.2d 342
(The “defendant-appellee was granted the
exclusive right . . . to conduct geophysical
explorations[.]”); Pinkerton v. Moore, 1959NMSC-051, ¶ 13, 66 N.M. 11, 340 P.2d 844
(“[T]he United States Congress in 1958,
probably in recognition of modern exploration methods, enacted certain legislation
which recognizes and allows geological,
geochemical and geophysical surveys to
be included as labor.”); Tidewater Associated Oil Co. v. Shipp, 1954-NMSC-129, ¶
10, 59 N.M. 37, 278 P.2d 571 (“The doing
of geophysical or seismographic work has
become an inseparable part of oil and gas
discovery procedure.”).
{16} Other states likewise classify geophysical seismic surveys as part of oil and
gas exploration. See Enron Oil & Gas Co. v.
Worth, 1997 OK CIV APP 60, 947 P.2d 610,
612 (“This is an appeal from an order denying the plaintiff ’s quest for an injunction
to prevent surface owners from interfering
with seismic exploration for minerals.”);
Anschutz Corp. v. Sanders, 734 P.2d 1290,
1291 (Okla. 1987) (“One who is engaged
merely in the process of geophysical exploration may, as a result of that exploration,
determine not to drill at all.”); Roye Realty
& Dev., Inc. v. S. Seismic, 711 P.2d 946, 948
(Okla. Civ. App. 1985) (“[T]he respective
rights of the lessor and lessee to conduct
geological and geophysical exploration will
depend on the provisions of the lease.”);
Hunt Oil Co. v. Kerbaugh, 283 N.W.2d
131, 136 (N.D. 1979) (“The [defendants],
in support of their argument for denial
of injunctive relief, offered affidavits and
testimony indicating the damages they
had sustained as the result of prior seismic
exploration; that the present seismic activity was causing damage to their grain crop,
pasture, and other farmland; and that they
fear additional damage to property from
further seismic activity.”); Ready v. Texaco,
Inc., 410 P.2d 983 (Wyo. 1966) (referring
to conducting “geophysical exploration”
by the “seismographic method”).
{17} Defendants argue that a classifying
geophysical survey in the category of “oil
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and gas operations” under Sections 7012-3(A), -4(A), and -5(B) would make
no sense to the context of the activities
actually occurring at the time. We disagree. Defendants confuse the purpose
of the notice provision, which bifurcates
non-surface disturbing and surface disturbing oil and gas activities, with SOPA’s
strict liability compensation provision.
The notice requirements reflect the level
of invasiveness of different oil and gas
operations. Evaluative and exploratory
activities require a lesser notice standard
while activities dealing with pipelines,
construction, and drilling, for example,
require alerting the surface owner to the
more intense operations.
{18} We hold that the geophysical seismic
survey is an oil and gas operation under
SOPA, which subjects Defendants to strict
liability for statutory damages. We therefore reverse the district court and remand
for trial of Plaintiffs’ SOPA claim.
B. Breach of Contract Claims
{19} The breach of contract claims arise
out of a lease from the State Land Office to
Woody2 and a permit granted to Dawson
by the State Land Office. Pursuant to an
agricultural lease with the State Land Office, Woody leases the surface of several
tracts of land from the State Land Office,
and the State Land Office reserves the
right to execute leases “for the extraction
of oil [and] gas” and “the right to go upon,
explore for, mine, remove and sell same.”
The lease also provides that when such
rights are granted, permittees must settle
with and compensate the State Land Office
surface lessees for damages specified in
19.2.17.15 NMAC that we discuss below.
Dawson obtained a permit from the State
Land office to conduct the geological seismic surveys on lands that included lands
leased to Woody, and the permit also requires Dawson to compensate State Land
Office surface lessees such as Woody for the
damages specified in 19.2.17.15 NMAC.
{20} Summary judgment was granted
to Defendants on the breach of contract
claims related to the leased lands on the
grounds that: (1) Woody is not entitled to
recover surface damages, which are only
owed to the State; (2) while the leases
entitle Woody to recover damages to the
range, Woody did not plead such damages;
(3) Mr. Woody is bound by his deposition
testimony that he was not seeking damages
for lands he was leasing from the State; and
(4) Woody is not entitled to seek damages
as a third-party beneficiary to a contract
between Sovereign and Dawson. We address each point in turn.
1. Surface Damages Owed to the State
{21} Plaintiffs agree that they do not seek
to recover for surface damages owed to
the State Land Office. On the other hand,
Plaintiffs contend that as a lessee, Woody
is entitled to damages to the range which it
does seek. This brings us to the second basis
on which the district court granted summary judgment, which we now address.
2. Damages to the Range
{22} The district court initially ruled
that under the terms of its lease, Woody is
entitled to recover damages to the range.
We agree. Dawson’s permit from the State
Land Office to conduct the geophysical
seismic surveys specifically provides: “The
Permittee [Dawson] must settle with and
compensate state land office lessees [such
as Woody] for actual damage to or loss
of livestock, authorized improvements,
range, crops, and other valid existing
rights recognized by law. (19.2.17.15(B)
NMAC).” The lease between Woody and
the State Land Office provided for damages
which must be paid under 19.2.17.15(B)
NMAC. The regulation states:
Permittees must settle with and
compensate state land office surface lessees for actual damages
to or loss of livestock, authorized
improvements, range, crops, and
other valid existing rights recognized by law.
Settled authority requires the damages
provided for in the permit and lease to be
enforced. See Dean, 2003-NMCA-049, ¶
14 (concluding that a surface owner was
entitled to the benefit of a statutory oil and
gas lease form which held the oil and gas
lessee liable for “all damages to the range,
livestock, growing crops or improvements” caused by the oil and gas lessee’s
operation on the lands (internal quotation
marks and citation omitted)); Tidewater,
1954-NMSC-129, ¶¶ 20-21 (making same
conclusion for surface lessee).
{23} The district court ruled, however, that
while Woody is entitled to damages to the
range, the complaint does not plead such
damages, and on this basis, granted Defendants summary judgment. The sufficiency
of the pleadings to seek damages to the
range presents a question of law, which we
review de novo. See Higgins v. Hermes, 1976-
2The lease is actually to the Dwain F. Woody Trust. However, Woody received an assignment of rights from the Dwain F. Woody
Trust to pursue this litigation. In addition, only Woody sued as a state grazing lessee, not Pipkin.
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NMCA-066, ¶¶ 7-8, 89 N.M. 379, 552 P.2d
1227 (concluding as a matter of law that a
complaint which alleged that the defendant’s
actions resulted in physical injuries to the
plaintiff was sufficient to allege psychological damages and pain and suffering). For
the following reasons, we disagree with the
district court that the complaint fails to seek
damages to the range.
{24} The complaint alleges that the permits and licenses issued to Sovereign “require compensation to the surface owner
or lessee for damage done to the surface
estate”; that Sovereign and Dawson are in
violation of the permits and leases, and are
thus in breach of contract, and that as a
result of the breaches, “Plaintiffs have been
damaged and are entitled to damages as necessary to compensate for the harm caused to
the land.” We agree with Plaintiffs that the
foregoing allegations are sufficient to place
Defendants on notice that they are seeking
those damages provided for in the permits
and leases: “actual damages to or loss of
livestock, authorized improvements, range,
crops, and other valid rights recognized
by law.” This is all that is required by our
requirements for notice pleading. See Valles
v. Silverman, 2004-NMCA-019, ¶ 18, 135
N.M. 91, 84 P.3d 1056 (“General allegations
of conduct are sufficient, as long as they
show that the party is entitled to relief and
are sufficiently detailed to give the parties
and the court a fair idea of the plaintiff ’s
complaint and the relief requested.” (alteration, internal quotation marks, and citation
omitted); Rule 1-008(F) NMRA (“All pleadings shall be so construed as to do substantial justice.”). Moreover, Defendants could
not claim surprise, as discovery responses
provided clearly stated that Plaintiffs were
seeking damages to the range.
{25} Defendants assert that there is a technical difference between “surface damages”
and “range damages” and that because Plaintiffs used the term “surface estate” as quoted
above, they limited themselves to seeking
“surface damages.” The district court agreed
with this argument and reasoning. However,
we disagree with the broad contention that
damages to the range of necessity excludes
any and all surface damages. In Tidewater,
our Supreme Court concluded that the following facts entitled a lessee to damages
to the range under a lease with language
identical to that before us here:
The shot string extended for
four and one-half miles and the
work was in progress some eight
days. Trucks ran up and down the
line, according to the testimony,
http://www.nmcompcomm.us/
and as the soil was very dry, dust
settled on the grass covering approximately a forty[-]acre strip of
the shot string. Its use for grazing
was thereby lost until it rained and
there was no rain for quite a time
after the work was completed.
There was testimony the cattle
were disturbed by the trucks being
driven through them, in addition
to the fact the trucks were on the
ranch; that the cattle did not graze
well during the period while the
work was being done and that they
lost weight on account thereof, to
the damage of the appellee. There
was also testimony the turf was
damaged by the trucks driving
back and forth and that the cattle
had to go two miles to water because of the operations.
1954-NMSC-129, ¶¶ 23-24. Findings of
fact that supported finding damages to the
range included findings that in connection
with the geophysical exploration work,
“the plaintiff used drilling rigs, power
wagons, trucks and other vehicular equipment and traveled back and forth across
said lands and disturbed the defendant’s
livestock which were grazing thereon and
damaged the [] range, livestock and improvements[.]” Id. ¶ 10 (internal quotation
marks and citation omitted); see also Dean,
2003-NMCA-049, ¶¶ 17-18 (concluding
there was sufficient proof of range damages
where the plaintiff testified that his Blue
Gamma grass was damaged by tracks and
dust created by trucks during the defendant’s seismic exploration).
{26} In addition, we note that besides
alleging that Defendants failed to comply
with their obligation to pay compensation
as required by the permits and leases, the
complaint alleges that Dawson was negligent in performing the geophysical seismic
surveys, and as a result, “[T]he land has
been damaged. The land damage is progressive and will continue to be progressive
until properly repaired and remediated.
The damage includes the cutting of roads,
the killing of flora and the creation of
areas where the vegetation was damaged
to the point that it provides no barrier or
prevention to erosion.” These allegations
are consistent with damages to the range
as described in Tidewater, and they are
then incorporated into the count alleging
breach of contract. This manner of alleging damages is permissible. Rule 1-010(B)
NMRA (“[A] paragraph may be referred to
by number in all succeeding pleadings.”).
{27} While we do not here describe the
full limits of what constitutes damages to
the range, we do conclude that such damages do not exclude all damages to the surface of the land. Moreover, Tidewater does
not allow for simply dividing damages that
are due to a landlord on the one hand,
and damages that are due to a tenant on
the other hand, as the district court ruled.
We therefore hold that the complaint gives
adequate legal and factual notice in alleging damages to the range, and that such
damages were improperly excluded by
the summary judgment entered on this
question by the district court.
3. Deposition Testimony
{28} This brings us to the third basis on
which the district court granted summary
judgment on the breach of contract claim.
The district court disregarded Dwain
Woody’s affidavit that was submitted in
opposition to the motion for summary
judgment on grounds that “it contradicts
his prior sworn testimony” and counsel’s
statement during the deposition to clarify the
testimony was “too vague to adequately place
Defendants on notice of the precise nature of
the allegation being pursued.” The deposition
testimony at issue is the following:
Q:
Okay. All right. Now are
you claiming any damage to the
blue areas where you are leasing
lands from the state?
A:
No, I’m not.
{29} During the deposition, Plaintiffs’
counsel attempted to clarify the testimony,
stating, “ [I]f he’s got a legal basis for claiming damages to lands that he leased, that’s
asserted in the complaint.” In addition,
responses to discovery requests had been
provided to Defendants clearly stating that
damages to the range on leased lands was
being claimed pursuant to the state leases
and permits. When Defendants sought
summary judgment on the leased lands on
the basis of Mr. Woody’s deposition testimony, Plaintiffs submitted Mr. Woody’s
affidavit in which he explained:
7.To the extent it needs to be
clarified Woody Investments,
LLC is making claims to damage
to the range on land leased from
the State of New Mexico and the
United States of America. It was
pled in the complaint and I now
understand it to be one of the
claims which has been made on
behalf of Woody Investments,
LLC in this case.
8.I became confused in the deposition when being asked about
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the legal claims made in the case.
I never intended to imply a claim
would not be made for damage
to the range or other necessary
claims which are asserted as to
state lease land.
9.To the extent I was asked to
comment on a legal position I am
not qualified to address that and
in the deposition when my counsel indicated a claim for damage
leased land had been asserted I
relied upon that to clarify and
accurately state our position.
{30} In the foregoing circumstances, the
question before us is whether Mr. Woody’s
affidavit was submitted in an attempt to
create a sham issue of fact. Rivera v. Trujillo,
1999-NMCA-129, ¶ 9, 128 N.M. 106, 990
P.2d 219. “Ultimately, the determination of
whether a genuine factual dispute exists is
a question of law.” Id. ¶ 8. Thus, our task on
appeal is to examine the circumstances de
novo and determine if the affidavit created
a material issue of fact. See id. ¶ 10.
{31}In Rivera, suit was brought when a
vehicle driven by Serrano collided with
a semitruck. Id. ¶ 2. In his deposition,
Serrano repeatedly testified in response
to defense counsel’s questions that he had
“blacked out” and could not “remember”
anything immediately prior to the accident. Id. ¶ 10 (internal quotation marks
and citation omitted). Under questioning
from his own attorney, Serrano then unequivocally and repeatedly testified to his
understanding of what a “blackout” is, and
that he lost consciousness while driving
before he hit the truck. Id. ¶ 10. When a
motion for summary judgment was filed
on the basis that Serrano admitted he lost
consciousness, an affidavit was filed that
contradicted his deposition testimony that
he understood what a “blackout” is. Id. ¶
12. We concluded that “[s]uch post-hoc
efforts to nullify unambiguous admissions
under oath will not create a factual dispute
sufficient to evade summary judgment.” Id.
{32} The facts before us in this case are different. When Mr. Woody was asked whether
damages were claimed for lands leased from
the state and he answered in the negative,
counsel pointed out that if he had a legal
basis for making such a claim, it was set
forth in the complaint. No follow-up questions were asked, and the complaint and
discovery provided to Defendants clearly
put Defendants on notice that Plaintiffs
were seeking damages to the leased lands.
The only real issue between the parties was
whether damages to the range could be re28
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covered, and we have addressed that as well.
Under these circumstances, we are unable
to conclude that the affidavit was submitted
to create a sham issue of fact. See Lotspeich
v. Golden Oil Co., 1998-NMCA-101, ¶¶ 12,
19, 125 N.M. 365, 961 P.2d 790 (concluding
that it was error not to consider affidavits
submitted in opposition to motion for
summary judgment where “[t]he claims set
forth in the affidavits are neither conclusory
nor without a factual base”). We therefore
conclude that the district court erred in not
considering Mr. Woody’s affidavit.
4. Third-Party Beneficiary
{33} This brings us to the final basis
relied upon by the district court in granting summary judgment as to the breach
of contract claims. Specifically, Plaintiffs
contend they are entitled to recover under
a “good neighbor policy” attached to a
contract between Sovereign and Dawson
as third-party beneficiaries, and that summary judgment on this claim should be
reversed. We disagree.
{34} It is a general rule that “one who is
not a party to a contract cannot maintain
suit upon it.” Staley v. New, 1952-NMSC102, ¶ 7, 56 N.M. 756, 250 P.2d 893. An
exception to the general rule is a third-party
beneficiary. Permian Basin Inv. Corp. v. Lloyd,
1957-NMSC-048, ¶ 22, 63 N.M. 1, 312 P.2d
533. Whether a person is a third-party beneficiary depends on the intent of the parties
to the contract. Fleet Mortg. Corp. v. Schuster,
1991-NMSC-046, ¶ 4, 112 N.M. 48, 811 P.2d
81. “Such intent must appear either from the
contract itself or from some evidence that the
person claiming to be a third[-]party beneficiary is an intended beneficiary.” Valdez
v. Cillessen & Son, Inc., 1987-NMSC-015, ¶
34, 105 N.M. 575, 734 P.2d 1258.
{35} There is no language in the contract
conferring third-party beneficiary status
upon Plaintiffs. Plaintiffs rely exclusively
upon a statement made by Sovereign’s managing member that “I guess what I would
say is I think this is a benefit to everybody
involved.” At best this testimony rendered
Plaintiffs as incidental beneficiaries. See
Fleet Mortg. Corp., 1991-NMSC-046, ¶ 4
(stating an incidental beneficiary is “a person who is neither the promisee of a contract
nor the party to whom performance is to be
rendered but who will derive a benefit from
its performance.’ ” (quoting 2 S. Williston,
A Treatise on the Law of Contracts § 402 (W.
Jaeger 3d ed. 1959)) (alteration omitted)).
As incidental beneficiaries, Plaintiffs are not
entitled to recover under the contract. Fleet
Mortg. Corp., 1991-NMSC-046, ¶ 4.
C.Testimony of Plaintiffs’ Expert
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Witness
{36} Plaintiffs contend that the district
court committed reversible error in not
allowing their expert witness to give his
opinion on damages at the trial on their
negligence and trespass claims. However,
because the jury found no liability on the
negligence and trespass claims, we do not
address Plaintiffs’ argument. See Kysar v.
BP Am. Prod. Co., 2012-NMCA-036, ¶ 21,
273 P.3d 867 (“[E]ven if a district court
makes an erroneous ruling, it does not
constitute reversible error unless it results
in prejudice.”); Rule 11-103(A) NMRA (“A
party may claim error in a ruling to admit
or exclude evidence only if the error affects
a substantial right of the party[.]”); W. Va.
Dep’t of Transp. v. Parkersburg Inn, Inc., 671
S.E.2d 693, 706 (W. Va. 2008) (reaffirming
that where a plaintiff does not prevail on
liability, any errors alleged as to damages
are harmless).
D. Defendants’ Cross Appeal
{37} Defendants filed a counterclaim
seeking an award of attorney fees and costs
pursuant to SOPA on the basis that Plaintiffs failed to exercise good faith with the
provisions of SOPA. Section 70-12-7(A)
(4) (providing that attorney fees and costs
may be awarded to the prevailing party if
“the surface owner failed to exercise good
faith in complying with the provisions of
[SOPA] or the terms of a surface use and
compensating agreement”). At the trial on
Plaintiffs’ negligence and trespass claims,
the district court granted Plaintiffs’ motion
for a directed verdict on the counterclaim,
and Defendants appeal. When the district
court granted the directed verdict, Defendants were “prevailing” parties under
Section 70-12-7(A)(4), because summary
judgment was granted to Defendants under Plaintiffs’ SOPA claim. However, we
have reversed that summary judgment,
and Defendants can no longer be considered as “prevailing” parties. Accordingly,
we do not address the cross appeal.
CONCLUSION
{38} The orders of the district court
granting summary judgment on Plaintiffs’
SOPA claim and breach of contract claims,
except the third-party beneficiary claim,
are reversed. This case is remanded to
the district court for further proceedings
consistent with this Opinion.
{39} IT IS SO ORDERED.
MICHAEL E. VIGIL, Chief Judge
WE CONCUR:
JAMES J. WECHSLER, Judge
TIMOTHY L. GARCIA, Judge
Advance Opinions
http://www.nmcompcomm.us/
From the New Mexico Court of Appeals
Opinion Number: 2015-NMCA-112
No. 32,105, (filed August 13, 2015)
ROSEMARY PAEZ and REY PAEZ,
Plaintiffs-Appellants,
v.
BURLINGTON NORTHERN SANTA FE RAILWAY, MIKE A. ORTEGA,
HECTOR L. URAN, COUNTY OF SOCORRO, by and through its
COMMISSIONERS, ROSALIND TRIPP, JAY SANTILLANES, LAUREL ARMIJO,
CHARLES GALLEGOS, and STANLEY HERRERA,
Defendants-Appellees.
APPEAL FROM THE DISTRICT COURT OF SOCORRO COUNTY
KEVIN R. SWEAZEA, District Judge
TIBO J. CHAVEZ, JR.
LAW OFFICE OF TIBO CHAVEZ, JR.
Belen, New Mexico
TURNER W. BRANCH
BRANCH LAW FIRM
Albuquerque, New Mexico
for Appellants
Opinion
J. Miles Hanisee, Judge
{1}While driving her vehicle in Socorro
County (the County), Rosemary Paez
collided with a train owned and operated
by Burlington Northern Santa Fe Railway
(BNSF). Mrs. Paez and her husband, Rey
Paez (Plaintiffs) filed a civil lawsuit against
BNSF and the County (Defendants),
among others. Defendants filed numerous
motions for partial summary judgment.
After multiple hearings, the district court
granted summary judgment as to each
motion, ultimately disposing entirely of
CLIFFORD K. ATKINSON
JOHN S. THAL
ELIZABETH LOSEE
ATKINSON, THAL & BAKER, P.C.
Albuquerque, New Mexico
for Appellee Burlington Northern
Santa Fe Railway
MARCUS J. RAEL, JR.
DOUGLAS E. GARDNER
ROBLES RAEL & ANAYA, P.C.
Albuquerque, New Mexico
for Appellee County of Soccoro
Plaintiffs’ negligence claims against Defendants. Plaintiffs appeal, arguing that
disputed issues of material fact precluded
summary judgment. We affirm.
BACKGROUND
{2}This case arises from a 2008 collision in Socorro County between a train,
owned and operated by BNSF, and a vehicle driven by Mrs. Paez.1 The collision
occurred at a railroad crossing known as
the Paizalas Road crossing (the crossing),
located within walking distance of Plaintiffs’ property. Mrs. Paez was badly injured
in the collision, and she and her husband
sued Defendants, BNSF’s train operators,
and others, on the basis of negligence, for
personal injury and damages.2 Plaintiffs’
amended complaint asserted BNSF’s
negligent failure to: (1) maintain a safe
railroad crossing, (2) provide adequate
warning devices, and (3) eliminate visual
obstructions to enable motorists’ “clear
and unobstructed view of the crossing and
approaching trains.” Additionally, Plaintiffs contended that in conjunction with
its train operators, BNSF failed to sound
the train horn, keep a proper lookout, and
slow the train “as required to protect the
traveling public.”3 Similarly but not identically, Plaintiffs alleged that the County
failed to maintain the roadway itself in
a safe condition, post adequate warning
signs, and to undertake on-site measures
to clear visual obstructions. In addition to
general and punitive damages, Plaintiffs
sought attorney fees and costs.
{3}BNSF answered Plaintiffs’ amended
complaint and subsequently filed nine
motions for partial summary judgment,
asserting at the outset and in relevant part
for purposes of this appeal, that: (1) Mrs.
Paez was negligent per se in failing to yield
to the train and in failing to keep a lookout;
(2) Plaintiffs’ claim of failure to provide
adequate warning devices was preempted
by federal law; (3) Plaintiffs’ claim regarding the unsafe condition of the crossing
was preempted by federal law and failed
for lack of causation; and (4) undisputed
photographic evidence established the
absence of visual obstructions. Initially,
the district court denied BNSF’s motion
for partial summary judgment premised
upon Mrs. Paez’s negligence per se. It
granted BNSF’s preemption-based motions
regarding both the crossing’s upkeep and
the asserted inadequacy of its warning devices. The record does not reflect an initial
written order regarding BNSF’s challenge
to Plaintiffs’ visual obstruction claim. Later
during the litigation, BNSF filed a renewed
motion for partial summary judgment on
each basis that the district court initially
rejected or withheld judgment.
{4} Along with ultimately joining BNSF’s
renewed motion for summary judgment,
the County filed three of its own summary judgment motions, asserting that:
1Mrs. Paez died during the pen dency of this case. Her husband is the remaining Plaintiff in this matter. It is unclear on appeal
whether the estate of Rosemary Paez has formally been substituted to represent her preexisting personal interest in the underlying
litigation. In this Opinion, we refer to Plaintiffs as being either Rosemary Paez or her estate, and Rey Paez.
2Plaintiffs also named the Middle Rio Grande Conservancy District (MRGCD) as a defendant in the complaint; however, the
district court granted a motion by MRGCD to dismiss the claims against it on the basis of improper venue. The propriety of this
dismissal is not before us on appeal; we therefore omit any discussion regarding MRGCD.
3Plaintiffs no longer dispute that BNSF engineers in fact sounded the train’s horn. Nor do Plaintiffs persist in contentions regarding the keeping of a lookout or train speed.
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(1) it had no statutory duty to maintain
the railroad crossing area or the railroad
crossing itself; (2) federal law preempted
Plaintiffs’ inadequate warning device
claim; (3) it had no actual or constructive
notice of an alleged defect or dangerous
condition associated with the crossing;
and (4) Plaintiffs lacked evidence that the
asserted negligence against the County was
the proximate cause of any damages. The
district court initially denied the County’s
motions with the exception of its request
for summary judgment on Plaintiffs’
inadequate warning device claim. Consequently, not only did the County join
BNSF’s motion for reconsideration, but it
filed its own motion to reconsider alleging more specifically that Plaintiffs were
unable to prove that the County was negligent or that the alleged negligence was a
proximate cause of Mrs. Paez’s injuries.
{5}The district court eventually granted
the renewed motions, following lengthy
proceedings and by a written order that
stated there to be “no genuine issue as to
any material fact.” In conjunction with its
rulings on these and BNSF’s remaining motions for summary judgment that are not
before us on appeal, the district court resolved the entirety of Plaintiffs’ case against
Defendants. The reasoning employed by
the district court is best discerned from
its statements during and at the conclusion
of the two-day motion hearing it held. Addressing Plaintiffs’ claims regarding both
the condition of and visual obstructions
alongside the crossing, and considering
photographic evidence provided by the
parties, the district court stated:
The train would have been visible. When you contrast that
against . . . testimony that the
vegetation somehow kept one
from seeing it just is not—I mean,
the photographs are impossible to
refute. The experts that Plaintiffs
have both indicate[d] . . . that
they are not giving opinions on
causation, that the conditions on
the road caused the accident, or
that . . . [the] conditions caused
the accident.
First with particular focus on the County,
the district court observed that, “very
honestly it looks [as though Plaintiffs]
absolutely sorely lack[] . . . proof of cau-
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sation.” It later generally concluded that
“Plaintiffs ha[d not] proven any proximate
cause on any of their claims.”
{6}The district court further found that
“[f]ederal money was expended by [BNSF]
in connection with the installation of [the]
crossbucks,” and therefore, Plaintiffs’ claim
that the crossing was extra-hazardous due
to the inadequacy of warning devices was
preempted by federal law. Additionally,
considering Mrs. Paez’s own negligence
in light of the photographs it reviewed,
the district court was “convinced . . . that
no reasonable jury would find that [Mrs.]
Paez had not violated [NMSA 1978, Section 66-7-341(A)(2) (2003),]” requiring
her to stop within a prescribed distance
of the railroad crossing for a visibly approaching train. Therefore, it concluded
“as a matter of law, that [Mrs.] Paez was
negligent pursuant to the common law
duty to stop, look, and listen, and negligent
per se pursuant to [Section 66-7-341].”
{7}Plaintiffs appeal, contending that the
district court erred in granting summary
judgment to Defendants. They argue that:
(1) material facts conflict as to whether the
condition of the crossing was a proximate
cause of the collision; (2) material facts
conflict as to whether visual obstructions
alongside the crossing were a proximate
cause of the collision; (3) federal law does
not preempt Plaintiffs’ claims regarding
the adequacy of warning devices or hazardous conditions at the crossing; and (4)
the district court wrongly concluded Mrs.
Paez to have been negligent per se.4
STANDARD OF REVIEW
{8}An appeal from an order granting
summary judgment presents a question
of law that we review de novo. Farmington
Police Officers Ass’n v. City of Farmington,
2006-NMCA-077, ¶ 13, 139 N.M. 750,
137 P.3d 1204. “We affirm an order granting summary judgment when there is no
evidence raising a reasonable doubt about
any genuine issue of material fact, and
the moving party is entitled to judgment
as a matter of law.” Lujan v. N.M. Dep’t of
Transp., 2015-NMCA-005, ¶ 5, 341 P.3d
001, cert. denied, 2014-NMCERT-011,
339 P.3d 841. The moving party bears the
burden to demonstrate the absence of any
genuine issue of material fact. Brown v.
Taylor, 1995-NMSC-050, ¶ 8, 120 N.M.
302, 901 P.2d 720. “Once this prima facie
showing has been made, the burden shifts
to the non-movant to demonstrate the existence of specific evidentiary facts which
would require trial on the merits.” Romero
v. Philip Morris Inc., 2010-NMSC-035, ¶ 10,
148 N.M. 713, 242 P.3d 280 (internal quotation marks and citation omitted). In New
Mexico, summary judgment is disfavored,
with trial on the merits being the preferred
method by which litigation is concluded.
Id. ¶ 8. As such, in conducting a de novo
review of the record “we resolve all reasonable inferences in favor of the non-movant”
and view the record in the light most
favorable to a trial on the merits. Lujan,
2015-NMCA-005, ¶ 5 (alteration, internal
quotation marks, and citation omitted).
DISCUSSION
{9}Plaintiffs sued Defendants on the
basis that both had been negligent in
their respective responsibilities attendant
to the railroad crossing, the surrounding
areas, and their upkeep. Plaintiffs likewise
asserted BNSF’s negligent operation of the
train with which Mrs. Paez collided.
It is axiomatic that a negligence
action requires that there be a duty
owed from the defendant to the
plaintiff; that based on a standard of
reasonable care under the circumstances, the defendant breached
that duty; and that the breach was
a cause in fact and proximate cause
of the plaintiff ’s damages.
Romero v. Giant Stop-N-Go of N.M., Inc.,
2009-NMCA-059, ¶ 5, 146 N.M. 520, 212
P.3d 408. Here, in conjunction with its
general determination that material facts
were not in dispute, the district court
specifically concluded that “Plaintiffs [had
not] proven any proximate cause [as to]
any of their claims.” We commence our
review by examining the facts of this case
in light of the element of proximate cause.
{10} Plaintiffs assert that evidence regarding the crossing’s condition, its deficient
warning devices, and the presence of visual
obstructions that obscured Mrs. Paez’s
view of the approaching train establish
disputed questions of material fact. In their
supplemental briefing,5 Plaintiffs reiterate
their belief that “evidence submitted to
the [district] court shows that the County
breached its duty to provide a safe and nonhazardous roadway at the [] crossing, and
that the visual obstructions at the crossing
4Although Plaintiffs assert that they are appealing the entirety of the district court’s judgment, their brief in chief solely contains
argument regarding the four issues listed above. We address only those issues specifically raised on appeal as we do not consider
unsupported assertions excluded from a party’s brief in chief. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M.
339, 110 P.3d 1076.
30
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created a dangerous condition that was a
proximate cause of the collision.” Regarding the crossing itself, Plaintiffs contend
that its elevation was excessively disproportionate to the roadway it traversed. As
well, Plaintiffs renew their contention that
BNSF “failed to eliminate or remove the
visual obstructions at the [] crossing, which
was a proximate cause of the collision[.]”
{11} BNSF answers that Plaintiffs altogether lacked proof that its negligence in maintaining the crossing served as a legal cause
of the collision. In defending itself from
Plaintiffs’ assertions of negligence regarding
upkeep of the roadway and crossing, and the
presence of visual obstructions, the County
similarly answers that Plaintiffs failed to
“place any causal connection between any
act or omission by [the] County” and the
collision. Regarding the visual obstruction
claim, BNSF maintains the district court
bore the authority to determine that, given
clear photographic evidence to the contrary,
no reasonable jury could conclude that Mrs.
Paez’s view of the train was obstructed from
the road and direction she drove prior to
the collision. BNSF relies specifically on a
series of photographs taken by its expert
accident reconstructionist, Brian Charles,
contending that the images provide irrefutable evidence that the approaching train
would have been plainly apparent such
that the district court was “not required to
accord weight to contradictory testimony.”
BNSF also points to photographs obtained
from one of Plaintiffs’ own experts, located
at pages 2650, 2651, and 2652 of the record
proper, that appear to show no visual obstruction when approaching the crossing
from the roadway in the direction Mrs. Paez
traveled. The County agrees that given the
photographic evidence, “it simply becomes
impossible to argue that [Mrs.] Paez could
not have seen the approaching train[.]”
As did the district court, we focus initially
upon whether evidence in the record bore
the capacity to establish a material factual
dispute as to the element of proximate cause.
{12} We have defined the element of
“proximate cause” to be “that which, in a
natural or continuous sequence, produces
the injury and without which the injury
would not have occurred.” Lujan, 2015NMCA-005, ¶ 35 (internal quotation
marks and citation omitted). Proximate
cause encompasses “whether and to what
extent the defendant’s conduct foreseeably
http://www.nmcompcomm.us/
and substantially caused the specific injury
that actually occurred.” Id. (internal quotation marks and citation omitted). “An act
or omission may be deemed a ‘proximate
cause’ of an injury if it contributes to bringing about the injury, if the injury would not
have occurred without it, and if it is reasonably connected as a significant link to
the injury.” Talbott v. Roswell Hosp. Corp.,
2005-NMCA-109, ¶ 34, 138 N.M. 189, 118
P.3d 194. In the majority of circumstances,
proximate cause is a question of fact to be
decided by the factfinder; however, proximate cause becomes an issue of law “when
the facts are undisputed and the reasonable
inferences from those facts are plain and
consistent[.]” Lujan, 2015-NMCA-005,
¶ 35 (internal quotation marks and citation omitted). In order to determine that
a breach of duty did not legally cause the
alleged damages, the district court must
conclude that no reasonable jury would
find that the breach of duty by the defendant legally caused the damages suffered
by the plaintiff. Rodriguez v. Del Sol Shopping Ctr. Assocs., L.P., 2014-NMSC-014, ¶
24, 326 P.3d 465; see Lujan, 2015-NMCA005, ¶ 36. However, our Supreme Court
has also articulated that “[c]ourts are not
powerless to dismiss cases as a matter of
law,” and they “may still decide whether a
defendant did or did not breach the duty
of ordinary care as a matter of law, or that
the breach of duty did not legally cause
the damages alleged in the case.” Rodriguez, 2014-NMSC-014, ¶ 24. Absent the
element of proximate cause, a claim for
negligence fails regardless of the presence
of the remaining elements of the cause of
action. See Romero, 2009-NMCA-059, ¶ 5
(stating that the absence of any element of
a negligence claim is fatal to the claim).
Proximate Cause: Condition of the
Crossing and Roadway
{13} To support the existence of a disputed issue of material fact regarding the
condition of the crossing being a proximate
cause of the collision, Plaintiffs first direct
us to the deposition testimony of expert
witness Alan Blackwell, a railway consultant with a background in track inspection.
Mr. Blackwell testified that drivers are
forced to decrease speed when approaching the crossing due to its “roughness[,]
protruding spikes[,] and everything else[.]”
He opined that BNSF failed to maintain
the crossing surface in compliance with
internal and industry standards such that
“vehicular traffic can travel across safely
and a motorist’s attention is not distracted
from observance of an approaching train.”
Additionally, Mr. Blackwell asserted that
the roadway leading to and from the crossing was to be maintained by the County;
the County in fact performed road work
at the crossing; yet the crossing remained
“extra[-]hazardous” due to its non-compliance with the appropriate standard of care,
related to its elevation from the roadway.
However, and despite the existence of this
expert opinion that the crossing and the
roadway were improperly maintained, it
remains necessary for Plaintiffs to show
that these failures were a cause of the collision. See N.M. State Highway Dep’t v. Van
Dyke, 1977-NMSC-027, ¶ 9, 90 N.M. 357,
563 P.2d 1150 (“Despite the failure . . . to
conform to the standard[,] . . . it is still
necessary for the plaintiff to show that the
failure to meet those standards proximately
caused the accident.”).
{14} We have emphasized that in order
to sustain a negligence action, along with
a showing the defendant owed a duty to
the plaintiff and breached that duty, the
plaintiff must show that the breach was
the cause in fact and proximate cause of
any damages. Romero, 2009-NMCA-059,
¶ 5. In addition to recently addressing the
topic in Lujan, Uniform Jury Instruction
13-305 NMRA, crafted by our Supreme
Court, defines “causation (proximate
cause)” to be an act, omission, or condition that contributes to bringing about an
injury or harm, such that the injury would
not have occurred without it. Id.; Lujan,
2015-NMCA-005, ¶ 35. We find no record
citation or support for Plaintiffs’ view that
their experts opined that the poor or defective conditions of the crossing or roadway
were causally connected to the collision.
Similarly, we find no record citation or
support for the position that Plaintiffs’
experts opined that the collision would not
have occurred absent the poor or defective
conditions of the crossing or roadway. In
fact, Mr. Blackwell directly stated that he
was “not providing an opinion that the
condition of [the] crossing caused the accident[.]” Furthermore, Plaintiffs’ second
expert, Mr. Burnham, a “traffic engineering and railroad safety expert,” who Plaintiffs assert establishes a question of fact
regarding causation, expressly stated that
5Supplemental briefing was ordered by this Court on April 10, 2015, due to the complexity of the underlying litigation and the
nineteen-volume record proper. We appreciate the parties’ effort in this regard and helpful presentations during the June 24, 2015
oral argument.
Bar Bulletin - March 2, 2016 - Volume 55, No. 9
31
Advance Opinions
he had not “isolated a factor that would be
directly attribut[able] to the County” that
would have caused the collision. Nor did
he maintain otherwise as to BNSF. Without
a proper evidentiary showing of causation,
Plaintiffs’ negligence claim fails as to the
condition of the crossing and the roadway
leading to it. See Lujan, 2015-NMCA-005,
¶ 7; Romero, 2009-NMCA-059, ¶ 5. We
hold that there is no disputed material
fact as to proximate cause, and the district
court did not err in granting summary
judgment regarding Plaintiffs’ claims that
Defendants were negligent in relation to
the condition of the crossing and roadway. See Philip Morris, 2010-NMSC-035,
¶ 20 (holding that if a material element is
absent, “there can be no issue of material
fact”). We affirm the district court’s orders
in this regard.
Proximate Cause: Visual Obstructions
{15} Plaintiffs maintain that disputed issues of material fact precluded summary
judgment as to both Defendants regarding
claims that the presence of visual obstructions adjacent to the crossing and railroad
tracks interfered with Mrs. Paez’s line of
sight to the oncoming train. The County
again asserts that Plaintiffs failed to show
a causal connection between any act or
omission by the County and the collision.
BNSF maintains that summary judgment
was appropriate because Plaintiffs’ claim in
this regard was “blatantly contradicted by
the [photographic evidence], [such] that
no reasonable jury could believe it[.]”
{16} In response to BNSF’s fifth motion
for partial summary judgment, regarding Plaintiffs’ visual obstruction claim,
Plaintiffs submitted six photographs taken
within a month of the collision depicting
the condition of the area surrounding the
railroad tracks from different angles and
distances. Additionally, Plaintiffs provided
a report completed by Mr. Burnham detailing his findings regarding the collision. In
it, but without direct reference to a particular photograph, Mr. Burnham perceived
there to be a “greenery obstruction [that]
is very significant to partially obscure approaching trains.” He ultimately opined
that from the direction Mrs. Paez traveled
“[t]here was insufficient distance for a
westbound motorist to observe a plainly
visible train as the vehicle approached the
tracks at 10 mph or more.” After additional
photographs were entered into evidence
and Defendants filed their joint “renewed
fifth motion,” the district court found that
“[t]he train would have been visible . . . [as]
the photographs are impossible to refute.”
32
http://www.nmcompcomm.us/
{17} Specifically, the district court stated
in reference to a motorist’s position in relation to the crossing that “you can look at
a picture from 50 feet out and see a train
that’s sitting . . . back from the crossing,
and you . . . see it pretty clearly.” The court
noted that the photographs depicted surrounding dirt but not vegetation “of any
consequence at all.” It explained that “it
looks like the photographs just directly
contradict what [Plaintiffs’] expert is saying about . . . visibility[,]” and elaborated,
stating that it did not think that the expert
testimony regarding visibility “is something
that any reasonable jury would even
consider as factually accurate” given the
photographs. The court ultimately found
that “there is no way that a jury could not
say that [the] train [was] readily visible.”
The district court granted the motion,
determining there was no genuine issue of
material fact as Plaintiffs had again failed
to establish the element of proximate cause.
{18} Addressing causation in its supplemental briefing, Plaintiffs again point to
the testimony of their two experts, and
emphasize the testimony of four lay witnesses to link the failure of Defendants to
remove or rectify visual obstructions at the
area around the crossing and the collision.
Plaintiffs cite portions of the record they
contend show that the County failed to
elevate the roadway in order to eliminate
the disproportionate gradient that made
the crossing extra-hazardous, thereby
creating an obstacle that drivers must overcome when looking for a train. They also
repeat that BNSF failed to remove visual
obstructions at the crossing in violation of
its own engineering instructions. While
these contentions may relate directly to
the elements of duty and/or breach, the
facts on which they are based do not
establish that the roadway, the crossing,
or the hump on which the crossing is
located, or even any visual obstructions
only generally identified by Plaintiffs,
caused the collision. While Plaintiffs rely
on the testimony of Mr. Paez to establish
that Mrs. Paez could not see down the
tracks due to the crossing’s elevation or
the surrounding vegetation, and that of
three other witnesses asserting that drivers
cannot see, or encounter extreme difficulty
when attempting to see, whether a train is
approaching on the tracks being crossed,
photographs taken by BNSF’s expert accident reconstructionist, Mr. Charles, along
with Plaintiffs’ own photographs, illustrate
circumstances wholly contrary to those
described by Plaintiffs’ witnesses.
Bar Bulletin - March 2, 2016 - Volume 55, No. 9
{19} For clarity, Paizalas Road parallels
the train tracks, then approximately 200
feet from the crossing curves 90 degrees
in order for the roadway to traverse the
tracks. Following the curve, and between 75
and 100 feet of the crossing, Paizalas Road
becomes perpendicular to the tracks such
that a motorist can look to the left and right
for the presence of approaching trains. Mr.
Charles took eight photographs that “show
the view of the approaching train that a
motorist driving east on Paizalas Road toward the crossing would have had.” While
he recognized that his accident reconstruction was performed a little over two years
after the accident, Mr. Charles confirms
that based on his “review of photographs
taken on the same day or shortly after the
accident, as well as satellite images, [his]
opinion is that the environmental conditions and topography, including the road
and track structure, are substantially similar
to the conditions existing at the time of the
accident.” As stated previously and noted
by the district court, Plaintiffs’ own photographs, located at pages 2650-52 of the
record proper, support this contention and
are not markedly distinct from the Charles
photographs that show an unobstructed
view of an approaching train that a motorist would have as she or he approached the
crossing. Mr. Charles’s photographs, located
at pages 2671, 2675 and 2677 of the record
proper, show a BNSF train approaching the
crossing when a motorist’s vehicle would
be 79 feet, 50 feet, and 15 feet from it. The
photographs and accompanying visibility
study demonstrate that “from 79 feet east
to the crossing, a motorist’s view of an
oncoming train 650 feet to the south was
clear and unobstructed, and the train would
have been plainly visible the entire time.”
Our review of the photographs confirms
the district court’s repeated statement that
a motorist’s ability to see an approaching
train is indisputable at distances in excess
of and within 50 feet from the crossing.
{20} We take a moment to speak with
greater specificity as to the photographs on
which the district court primarily relied. Of
Mr. Charles’s, the first, located at page 2671
of the record proper, was taken 79 feet from
the crossing and depicted a clearly visible
train approaching from the southerly direction as had the train that collided with
Mrs. Paez’s vehicle. The second, located at
page 2675 of the record proper, was taken
50 feet from the crossing, and was noteworthy to the district court because that is the
distance at which Mrs. Paez was required
to stop pursuant to Section 66-7-341(A)
Advance Opinions
(2)(b) (requiring that a “person driving a
vehicle approaching a railroad-highway
grade crossing shall . . . stop not more
than [50] feet and not less than [15] feet
from the nearest rail of a crossing if . . . a
train is plainly visible and approaching
the crossing within hazardous proximity
to the crossing”). That photograph shows
not only the approaching train engine to be
clearly visible, but also its three illuminated
headlights and many of its accompanying
train cars. Lastly, page number 2677 of
the record proper is a photograph that
depicts a plainly visible train 15 feet from
the crossing, the point by which Mrs. Paez
was required to stop for a plainly visible
train pursuant to the statute. Not relying
exclusively on Mr. Charles’s photographs,
the district court was also presented with
three photographs, located at pages 265052 of the record proper, taken by counsel
for Plaintiffs within a few weeks of the
collision. At oral argument, Plaintiffs did
not dispute that these photographs were
taken approximately 20 feet away from the
crossing. Each depicted a scene free from
obstructions that might obscure a driver’s
view of a train approaching the crossing.
Based on these six photographs, namely the
three taken by Mr. Charles and the three
taken by Plaintiffs’ counsel, the district
court concluded that no visible obstruction
impaired Mrs. Paez’s view of the oncoming
train.
{21} When asked at oral argument to
identify the photograph that best depicted
visual obstructions adjacent to the railroad
tracks, Plaintiffs’ counsel identified an
altogether different photograph, located
at page 1205 of the record proper. But that
photograph, which counsel conceded to
have been taken “a long way away” from
the crossing—in excess of 50 feet—is little
different from the six photographs the
district court primarily relied upon, and
fails to undermine its conclusion regarding
the absence of visual obstructions.6 Despite
the photographic evidence, Plaintiffs reference a vague, stand-alone assertion by Mr.
Burnham that expressed his “confiden[ce]
that if [Mrs. Paez] was traveling 10 [mph]
or more, she would not have seen [the
train] until she got into a[] nonrecovery
position[,]” such that she would have been
unable to stop even had she seen the train.
However, this same expert agreed that Mrs.
Paez would have had a plain view of the
train 35 feet from the track had she looked.
http://www.nmcompcomm.us/
{22} BNSF asserts that the photographic
evidence presented to the district court
mandated the determination that summary
judgment was proper, as the images irrefutably proved that Mrs. Paez’s view was unobstructed prior to the collision. See Scott
v. Harris, 550 U.S. 372, 380 (2007) (“When
opposing parties tell two different stories,
one of which is blatantly contradicted by
the record, so that no reasonable jury could
believe it, a court should not adopt that version of the facts for purposes of ruling on a
motion for summary judgment.” (internal
quotation marks and citation omitted)).
Relying as well upon Perez v. City of Albuquerque, 2012-NMCA-040, ¶ 9, 276 P.3d
973, which discusses Scott, BNSF contends
that as a matter of law, the district court is
not required to accord weight to testimony
presented when it is blatantly at odds with
the extensive and irrefutable photographic
evidence. By way of supplemental authority, BNSF additionally notifies us of Brown
v. Illinois Central Railroad Co., 705 F.3d
531, 538-39 (5th Cir. 2013), which affirmed
summary judgment in favor of a railroad
where photographs showed that the motorist had a clear view of an oncoming train.
{23}Regarding Scott, we first note that
this Court has twice determined it to be
inapplicable when relied upon by a party
in an effort to resolve a factual conflict on
grounds of dispositive imagery. Yet Perez,
2012-NMCA-040, ¶ 10, and Benavidez v.
Shutiva, 2015-NMCA-065, ¶ 26, 350 P.3d
1234, are both meaningfully dissimilar
to Scott and are therefore distinguishable.
Moreover, neither repudiates the proposition set forth in Scott. At issue in both Perez
and Benavidez was videotape evidence
that depicted an occurrence, but which
required a jury’s separate subjective interpretation of the actors’ body language or
movements. Perez, 2012-NMCA-040, ¶ 8;
Benavidez, 2015-NMCA-065, ¶ 26. In Perez,
a civil rights claim in which a plaintiff had
sought a directed verdict based on a video
and in reliance on Scott, we noted that the
circumstance was different insofar as the
video evidence portrayed only a sequence
of events and did not provide a “determinative or a definitive account of the full
circumstances.” Perez, 2012-NMCA-040,
¶¶ 3, 10. At issue was whether the actions
of law enforcement officers were unreasonable under the total circumstances. Id. ¶ 10.
The plaintiff argued that there was only one
interpretation of the videotape at issue, but
we concluded the question of reasonableness to be one of fact for the jury and did
not disturb the district court’s denial of a
directed verdict. Id. ¶ 10.
{24} Benavidez also addressed a claimed
violation of a plaintiff ’s constitutional rights
as well as tort claims, where the district court
granted summary judgment in favor of the
defendants. Benavidez, 2015-NMCA-065, ¶¶
1, 21. The parties referred to a dashcam video of a vehicle stop to support their versions
of facts concerning the handcuffing of the
plaintiff; the defendants additionally relied
upon Scott. Benavidez, 2015-NMCA-065, ¶
26. We distinguished Scott, explaining that
“the video [in Scott] was used to establish a
fact that did not depend on interpretation
of people’s body language or demeanor[,]”
unlike the situation presented where the
actions of the parties were unclear from
the videotape and were subject to multiple
interpretations. Benavidez, 2015-NMCA065, ¶ 26. We ultimately determined that the
identity of the officer who handcuffed the
plaintiff might be conclusive, but whether
the plaintiff was resisting arrest depended on
one’s interpretation of various movements of
the plaintiff and the police officer. Therefore,
we held that the district court erred in granting summary judgment. Id. ¶ 27.
{25} Here, photographs depicting the
southerly view Mrs. Paez would have had
when approaching the crossing require no
subjective interpretation. They establish
that an approaching motorist’s capacity to
see an oncoming train from that direction
is plain and irrefutable. This case therefore
squarely aligns with Scott, see 550 U.S. at
380, and the district court properly relied
on indisputably decisive photographic
evidence to determine that no reasonable
jury could conclude that contrary testimony created a genuine issue of material
fact as to Defendants’ negligence. As well,
no reasonable jury could conclude that
any obstruction obscured the oncoming train from Mrs. Paez’s view at some
point between 50 and 15 feet before the
crossing, the distances between which
she was statutorily required to stop. Id.;
see § 66-7-341(A)(2)(b). Despite Plaintiffs’ effort to establish a factual dispute
regarding this issue, “[m]ere argument or
contention of [the] existence of [a] material issue of fact . . . does not make it so.”
Spears v. Canon de Carnue Land Grant,
1969-NMSC-163, ¶ 12, 80 N.M. 766, 461
P.2d 415.
6The six photographs primarily relied on by the district court, and the seventh identified by Plaintiffs’ counsel during oral argument, are appended to this Opinion.
Bar Bulletin - March 2, 2016 - Volume 55, No. 9
33
Advance Opinions
{26} The instrument of summary judgment, when sparingly and properly utilized,
is appropriate to resolve cases that do not
present issues upon which reasonable jurors
would disagree. When proper, such conclusions of law do not impermissibly intrude
into the realm of the fact-finder, but serve
the appropriate purpose of dispensing with
claims that are premised upon insufficient
factual showings. “The purpose of summary judgment is to pierce the boilerplate
of the pleadings and assay the parties’ proof
in order to determine whether trial is actually required.” Sovie v. Town of N. Andover,
742 F. Supp. 2d 167, 171 (D. Mass. 2010)
(internal quotation marks and citation
omitted). We view this circumstance to be
the rare such occurrence that justifies the
district court’s use of its summary judgment
authority regarding the element of proximate cause. We affirm the district court’s
grant of summary judgment in this case
because we agree that no reasonable jury
could find that vegetation near or around
the crossing created a visual obstruction
that was the proximate cause of the collision. See Scott, 550 U.S. at 380; Brown, 705
F.3d at 538 (“[W]here photographs and
undisputed measurements establish that a
driver approaching the crossing would have
had an unobstructed view of an oncoming
train, . . . trial courts [are instructed] to
grant judgment as a matter of law.”); Rodriguez, 2014-NMSC-014, ¶ 24 (holding that
a “judge can enter judgment as a matter
of law only if the judge concludes that no
reasonable jury could decide the . . . legal
cause question[] except one way”).
Preemption
{27} Plaintiffs additionally assert that the
district court erred in granting BNSF’s third
and seventh motions for partial summary
judgment, along with the County’s first such
motion, on the basis that Plaintiffs’ claims
regarding inadequate warning devices and
the hazardous condition of the crossing
were preempted by federal law. Plaintiffs
claim that this ruling constitutes error as
both Defendants “failed to submit any
evidence that federal monies were spent
on [these] warning devices” or to make any
improvements to the crossing itself. (Emphasis omitted.) We note at the outset that
Plaintiffs’ preemption argument is, at best,
muddled. Plaintiffs appear to abandon or
otherwise decline to develop their argument
regarding the inadequate warning devices
on appeal, specifically notifying us that they
“do not claim that the warning devices at
the crossing (i.e., the lights and crossbucks)
were inadequate[.]” However, Plaintiffs
34
http://www.nmcompcomm.us/
seem to argue that if their claim regarding
the dangerous condition of the crossing
could be construed to be one of inadequate
warning devices, federal preemption would
not be triggered as neither BNSF nor the
County submitted evidence that federal
funds were used to erect warning devices.
{28} We need not resolve this issue as federal preemption is an affirmative defense.
See Azar v. Prudential Ins. Co. of Am.,
2003-NMCA-062, ¶ 24, 133 N.M. 669, 68
P.3d 909. We have already determined that
Plaintiffs failed to establish a prima facie
case as to their negligence claim regarding
the condition of the crossing, and therefore
the availability of a preemption defense as
to those claims cannot alter the outcome of
the district court’s ruling. See Lujan, 2015NMCA-005, ¶ 7 (stating that the absence
of any element of negligence is fatal to a
plaintiff ’s claim).
Negligence Per Se
{29} Lastly, Plaintiffs assert that the
district court erred in granting partial
summary judgment premised upon its
determination that Mrs. Paez was negligent per se. Plaintiffs maintain this ruling
is contrary to the evidence that was presented to the district court and is based on
an impermissible factual determination
of fault. Plaintiffs contend that a genuine
issue of material fact exists as to the presence or absence of negligence on the part
of Mrs. Paez and that the district court
improperly adopted the role of fact-finder
in lieu of allowing the matter to proceed to
a jury. BNSF contends that summary judgment was proper as it is undisputed that all
of the elements of negligence per se were
satisfied. The County does not directly address the negligence per se claim; however,
it maintains that Mrs. Paez could see the
train, failed to perceive it in time, and,
therefore, proximately caused the collision
herself. The County generally reminds us
that in order to recover damages, Plaintiffs
must prove that an act or omission by the
County was a proximate cause.
{30} In order to determine whether a party
was negligent per se, New Mexico courts employ the following four-part test: (1) a statute
“prescribes certain actions or defines a standard of conduct, either explicitly or implicitly,” (2) the plaintiff “violate[d] the statute,” (3)
the plaintiff is “in the class of persons sought
to be protected by the statute,” and (4) the
plaintiff ’s “harm or injury . . . must generally
be of the type the [L]egislature through the
statute sought to prevent.” Apodaca v. AAA
Gas Co., 2003-NMCA-085, ¶ 43, 134 N.M.
77, 73 P.3d 215 (alteration, internal quotation
Bar Bulletin - March 2, 2016 - Volume 55, No. 9
marks, and citation omitted). BNSF contends
that Mrs. Paez violated Section 66-7-341(A)
(2)(b), requiring her to stop between 50 and
15 feet before the crossing, that she is within
the class of persons to be protected under this
statute, and suffered the type of harm sought
to be prevented through promulgation of the
statute.
{31} Section 66-7-341(A)(2)(b) requires
that motorists “approaching a railroadhighway grade crossing [to] stop not more
than [50] feet and not less that [15] feet
from the nearest rail of a crossing if . . . a
train is plainly visible and approaching
the crossing with hazardous proximity
to the crossing[.]” Additionally, Section
66-7-341(A)(3) permits a motorist to “proceed through the railroad-highway grade
crossing only if it is safe to completely pass
through the entire” crossing without stopping. (Emphasis added.)
{32} Because we have affirmed the district
court’s conclusion that photographic evidence established the plain visibility of the
approaching train had Mrs. Paez looked for
it, we can determine that she violated Section 66-7-341(A)(3) when she drove into
its path. Whom the Legislature sought to
protect is not explicitly stated in the statute;
however, it is reasonable to construe that
it is drivers, their passengers, and railroad
operation personnel. The harm sought to be
prevented was ostensibly collisions between
motorists and traversing trains. It appears
that the collision between Mrs. Paez and
the train is just that which the Legislature
sought to prevent in enacting this statute.
See Archibeque v. Homrich, 1975-NMSC066, ¶ 16, 88 N.M. 527, 543 P.2d 820 (providing a negligence per se analysis). Given
that all elements of the negligence per se
test have been satisfied, we hold that the district court properly granted the summary
judgment motion regarding negligence
per se, and we affirm it. See Hernandez v.
Brooks, 1980-NMCA-056, ¶ 5, 95 N.M. 670,
625 P.2d 1187 (“In New Mexico, one who
violates a statute . . . is guilty of negligence
per se, if the statute . . . was enacted for the
benefit of the class of persons to which the
injured person belongs.”).
CONCLUSION
{33} For the foregoing reasons, we affirm
the summary judgment rulings of the
district court.
{34} IT IS SO ORDERED.
J. MILES HANISEE, Judge
WE CONCUR:
JONATHAN B. SUTIN, Judge
M. MONICA ZAMORA, Judge
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Bar Bulletin - March 2, 2016 - Volume 55, No. 9
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Cynthia Weisman
has joined our Firm as a new associate.
Ms. Weisman served as an Assistant U.S. Attorney from 2000 to
2016. Prior to her joining the U.S. Attorney’s Office, Ms. Weisman
was in civil litigation practice for 10 years. Her experience in litigation
includes multi-district litigation and other complex lawsuits. Ms.
Weisman earned a B.A. in Social Sciences from Stanford University,
and a J.D. from Duke University School of Law.
We welcome her to our practice.
7309 Indian School Rd NE
Albuquerque, NM 87110
505.883.3191 • www.bdsfirm.com
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BAR BULLETIN
SUBMISSION DEADLINES
All advertising must be submitted via e-mail by 4 p.m. Wednesday, two weeks prior
to publication (Bulletin publishes every Wednesday). Advertising will be accepted
for publication in the Bar Bulletin in accordance with standards and ad rates set by
the publisher and subject to the availability of space. No guarantees can be given as
to advertising publication dates or placement although every effort will be made to
comply with publication request. The publisher reserves the right to review and edit ads,
to request that an ad be revised prior to publication or to reject any ad. Cancellations
must be received by 10 a.m. on Thursday, 13 days prior to publication.
For more advertising information, contact:
Marcia C. Ulibarri at 505-797-6058 or email [email protected]
Bar Bulletin - March 2, 2016 - Volume 55, No. 9
39
Classified
Positions
13th Judicial District Attorney
Assistant Trial Attorney,
Associate Trial Attorney
Sandoval and Valencia Counties
Assistant Trial Attorney - The 13th Judicial
District Attorney’s Office is accepting applications for entry to mid-level attorney to
fill the positions of Assistant Trial Attorney
for Sandoval (Bernalillo) or Valencia (Belen)
County Offices. These positions require
misdemeanor and felony caseload experience. Associate Trial Attorney - The 13th
Judicial District Attorney’s Office is accepting applications for entry level positions for
Sandoval (Bernalillo) or Valencia (Belen)
County Offices. These positions require
misdemeanor, juvenile and possible felony
cases. Upon request, be prepared to provide
a summary of cases tried. Salary for each
position is commensurate with experience.
Send resumes to Reyna Aragon, District Office Manager, PO Box 1750, Bernalillo, NM
87004, or via E-Mail to: [email protected].
nm.us. Deadline for submission of resumes:
Open until positions are filled.
Associate Attorney
Established Albuquerque law firm seeking
an Associate Attorney with 0-5 years' experience possessing strong writing and critical
thinking skills for work in Med Mal and
Catastrophic Injury Plaintiffs' practice. Email
resume and references to vlawofficenm@
gmail.com.
Proposal Request for Public
Defender Services
The Mescalero Apache Tribe is seeking proposals to provide Public Defender Services to
the Mescalero Tribal Court for criminal cases.
SUMMARY: The Mescalero Apache Tribal
Court is a court of general jurisdiction addressing crimes under the Mescalero Apache
Law and Order Code. All crimes do not exceed
one year sentencing. Attorneys licensed and in
good standing with the State of New Mexico
Bar is required; Proposed fees may be based on
an hourly rate or a flat rate; Proposed fees may
NOT exceed $60,000.00 per budget year; Final
terms of submitted proposals are negotiable.
SUBMIT PROPOSALS TO THE MESCALERO
TRIBAL ADMINISTRATOR: DUANE DUFFY,
MESCALERO APACHE TRIBE, MESCALERO, NM 88340 575-464-4494 EXT. 211
Associate
Established Albuquerque plaintiff personal
injury and wrongful death litigation firm
seeks associate for its growing statewide
practice. Ideal candidate should have minimum 2 years of personal injury litigation
experience. Taking/defending depositions
and arbitration/trial experience required. Bilingual Spanish is a plus. Salary dependent on
experience. Submit resumes to 4302 Carlisle
NE, Albuquerque, NM 87107. Please include
sample of legal writing.
9th Judicial District AttorneySenior Trial Attorney, Assistant Trial
Attorney, Associate Trial Attorney
The Ninth Judicial District Attorney is accepting resumes and applications for an attorney
to fill one of the following positions depending
on experience. All positions require admission to the New Mexico State Bar. Senior Trial
Attorney- This position requires substantial
knowledge and experience in criminal prosecution, rules of criminal procedure and rules
of evidence, as well as the ability to handle a
full-time complex felony caseload. A minimum
of five years as a practicing attorney are also required. Assistant Trial Attorney – This is an entry to mid-level attorney. This position requires
misdemeanor and felony caseload experience.
Associate Trial Attorney – an entry level position which requires misdemeanor, juvenile and
possible felony cases. Salary for each position is
commensurate with experience. Send resumes
to Dan Blair, District Office Manager, 417 Gidding, Suite 200, Clovis, NM 88101 or email to:
[email protected].
40
Family Law Attorney
The Law Office of Jill V. Johnson Vigil LLC.,
a Las Cruces based family law practice, is
seeking to expand and add an attorney to
our team. Applicants should have 2-3 years
experience in family law, be highly motivated,
able to multi-task and manage a large case
load. The Law Office of Jill V. Johnson Vigil
LLC. offers a comfortable and friendly work
environment with benefits and competitive
salary commensurate with your qualifications and experience. Applicants must be in
good standing with NM Bar and willing to
relocate to Las Cruces. Spanish speaking is
preferred, but not required. If you are ready
for the next step in your career, please send
your cover letter, resume and three references
via email to [email protected] before
March 31, 2016. Check us out online at www.
jvjvlaw.com and “like” us on Facebook Law
Office of Jill V. Johnson Vigil.
Request for Proposals:
Mountain States Insurance Group, located
in Albuquerque, seeks proposals from law
firms or licensed NM attorneys to provide
legal services in the defense of our insureds
related to civil claims and workers’ compensation in New Mexico and Texas. Firms or
attorneys interested in submitting a proposal
may request a packet from Stacey Scherer,
[email protected]. Proposals will be
due by May 1, 2016.
Bar Bulletin - March 2, 2016 - Volume 55, No. 9
Attorney
The civil litigation firm of Atkinson, Thal
& Baker, P.C. seeks an attorney with strong
academic credentials and 2-10 years experience for a successful, established complex
commercial and tort litigation practice. Excellent benefits. Tremendous opportunity for
professional development. Salary D.O.E. All
inquiries kept confidential. Send resume and
writing sample to Atkinson, Thal & Baker,
P.C., Attorney Recruiting, 201 Third Street
NW, Suite 1850, Albuquerque, NM 87102.
Litigation Associate Attorney
McCarthy Holthus, LLP, a well-established
multi-state law firm successfully representing
financial institutions in a variety of banking
law matters and specializing in mortgages
in default is currently seeking a Litigation
Associate Attorney to join our team in its Albuquerque, NM office. The responsibilities of
the qualified candidate will include, but are not
limited to, providing legal advice and support
to clients, serve as primary legal contact with
clients concerning litigation, client compliance
issues and surveys of the law as requested by
the Managing Attorney; research and analyze
legal sources such as statutes, recorded judicial
decisions, legal articles, treaties, constitutions, and legal codes; prepares legal briefs,
pleadings, appeals, contracts, and any other
necessary legal documentation during the
course of litigation; handle litigation cases
from referral to resolution, which may necessitate the use of written and oral advocacy,
motion practice, discovery, and trial preparation; participation in mediation, willingness and ability to understand complex loan
documentation and loss mitigation processes;
desire to provide exceptional customer service;
exceptional written and oral advocacy skills;
and openness to creatively engage in setting
new standards in our industry. The qualified
candidate must possess 4-6 years' litigation
experience preferably in the area of finance or
representation of financial institutions in real
estate related matters.Licensed to practice law
in New Mexico and all New Mexico District
Courts. McCarthy Holthus offers a comprehensive benefits package including competitive
paid time-Off (PTO). McCarthy Holthus is an
Equal Opportunity Employer and E-Verify
participant. Please apply by clicking the link
below: https://workforcenow.adp.com/jobs/
apply/posting.html?client=mypremier&jobId
=129791&source=CB
Attorney
O’Brien & Padilla, P.C., insurance defense
firm, is seeking an attorney with 2-8 years
of civil experience. Litigation experience a
plus. Competitive salary and benefits offered.
Send resume and references to: rpadilla@
obrienlawoffice.com
Associate Attorney
Riley, Shane & Keller, P.A., an AV-rated
defense firm in Albuquerque, seeks an associate attorney for an appellate/research
and writing position. We seek a person
with appellate experience, an interest in
legal writing and strong writing skills. The
position will be full-time with flexibility as
to schedule and an off-site work option. We
offer an excellent benefits package. Salary is
negotiable. Please submit a resumes, references and several writing samples to 3880
Osuna Rd., NE, Albuquerque, NM 87109
c/o Office Manager, (fax) 505-883-4362 or
[email protected]
Associate Attorney Position
Riley, Shane & Keller, P.A., an Albuquerque
AV-rated defense firm, seeks an Associate to
help handle our increasing case load. We are
seeking a person with one to five years experience. Candidate should have a strong academic background as well as skill and interest
in research, writing and discovery support.
Competitive salary and benefits. Please fax or
e-mail resumes and references to our office
at 3880 Osuna Rd., NE, Albuquerque, NM
87109 c/o Office Manager (fax) 505-883-4362
or [email protected]
Legal Assistant
O’Brien & Padilla, P.C., an AV rated firm,
seeks energetic part-time (25 hours per week)
legal assistant. The ability to transcribe dictation is a plus. Our law practice is focused
primarily in the areas of personal injury and
other insurance defense. Applicant must have
at least 2 years of experience. We will offer
competitive salary to the right candidate.
Please send a cover letter and your resume
to [email protected].
Legal Assistant
Chapman and Charlebois, a civil litigation
defense firm, is seeking a legal assistant
with 5+ years’ experience in civil litigation.
Extensive experience with practice management, calendaring, word processing, state and
federal court filings required. Must be highly
organized and detail oriented with good
customer service and multi-tasking skills.
Position needs include support for multiple
attorneys producing a high volume of work.
Email letter of interest with three professional
references, salary requirements and resume
to: [email protected]
Very busy Santa Fe plaintiffs personal injury
law firm seeks capable paralegal/legal assistant. Benefit package of $80,000.00 is possible, depending on skill and ability. Benefits
include 100% paid health insurance with
low deductible, SEP retirement plan, paid
sick leave and vacation time, and a generous
salary with bonuses. Please send resume to
[email protected].
Litigation Secretary
Legal Secretary/Assistant
Small, fast-paced and established civil
litigation law firm seeking full-time, bright,
conscientious, hard-working, self-starting,
mature and meticulous legal secretary/assistant with 3-5 years’ experience. Knowledge
of the NM legal system, local court rules
and filing procedures with excellent clerical,
organizational, computer, word processing,
critical thinking and multi-tasking skills a
must. Collections experience, Windows 10
and TABs time entry also desirable. Hours
are 8- 5 with 1 hour lunch. If you can work
independently, pay attention to detail, want
to learn, and are willing to do what it takes
to serve our clients, e-mail resume to twall@
binghamhurst.com. No phone calls, please.
Assistant District Attorney
The Second Judicial District Attorney’s office in Bernalillo County is looking for both
entry-level and experienced prosecutors.
Qualified applicants will be considered for
all divisions in the office. Salary and job
assignments will be based upon experience
and the District Attorney Personnel and
Compensation Plan. If interested please
mail/fax/e-mail a resume and letter of interest to Jeff Peters, Human Resources Director,
District Attorney’s Office, 520 Lomas Blvd.,
N.W., Albuquerque, NM 87102. Fax: 505-2411306. E-mail: [email protected]., or
go to www.2nd.nmdas.com.
Paralegal/Legal Assistant
Legal Assistant/Paralegal
Albuquerque law firm focused on civil catastrophic injury litigation seeking a full-time
paralegal/legal assistant to join our trial
team. Bachelor's degree and legal experience
preferred. Candidate should have strong
organizational skills and a positive attitude.
Send resume to [email protected].
Court Administrator
Manage and administer the activities, programs and staff of the Pueblo of Jemez’ Tribal
Court. Education and experience required:
Bachelor’s Degree in criminal justice, or a
closely related field; AND five (5) years of
managerial experience in court operations.
To learn more about this position and the
Pueblo of Jemez, visit our website at www.jemezpueblo.org. Or call the Human Resources
Department at (575) 834-7359. Submit a completed tribal application with your resume to:
[email protected]
Lewis Brisbois Bisgaard & Smith is seeking a strong litigation secretary to join our
Albuquerque office. Eligible candidates
will have the following qualifications: Both
State, Federal & Appellate court experience,
including knowledge of CM/ECF e-filing
procedures; 10+ years of litigation experience; Heavy law and motion practice, with
knowledge of trial preparation helpful;
Proficiency in Word 2007 or above; Skills
will include being organized, reliable, good
attention to detail, and ability to work under
short deadlines; Initiative and willingness to
be a team player are important assets for this
extremely busy and high profile desk. Salary
commensurate with experience. Please send
cover letter and resume either by e-mail to
[email protected], or by fax
to (505) 898-3900, ATTN: Angela Roberts,
Office Administrator.
Experienced Litigation Paralegal
Lewis, Brisbois, Bisgaard and Smith, LLC in
Albuquerque, is accepting resumes for an experienced litigation paralegal. Will assist attorneys in all aspects of legal case preparation
and file management including legal research,
drafting routine documents and collection of
information relevant to cases. May conduct
routine investigations and review and analyze
various reports, responses and records. Must
be well organized and be able to work independently. Must be able to file electronically
in state and federal court. Must be familiar
with billing time to clients using applications
such as law time or smart time. Associates
Degree or equivalent combination of relevant
education and work experience required.
Minimum 2 years paralegal and litigation
experience required. Knowledge of Medical
Terminology a plus. Please send resumes to
[email protected]
Family Law Paralegal
Secretary/Legal Assistant
F/T secretary/legal assistant for litigation and
business matters. Applicants should have a
minimum of 3 years of experience. Must be
detail oriented, organized, self-motivated &
able to undertake a variety of tasks in a fastpace environment. Salary DOE. Please email
your resume to [email protected].
TERRY & DEGRAAUW, P.C. is a twoattorney, family law firm in Albuquerque. We
are seeking a full-time, experienced paralegal
to join our team. Candidates should have
excellent attention to detail and the ability
to handle a high caseload. We offer benefits
and competitive compensation. Please submit your resume to Kelly Squires at kss@
tdgfamilylaw.com.
Bar Bulletin - March 2, 2016 - Volume 55, No. 9
41
Experienced Paralegal/
Legal Assistant
Chappell Law Firm, PA is seeking an experienced paralegal/legal assistant for a
temporary position which may lead to permanent employment. The firm specializes
in commercial real estate, business matters
and commercial litigation. Experience with
WordPerfect, Word and Outlook required.
Please submit resumes and salary requirements to [email protected].
Full-Time Litigation Paralegal;
Las Cruces, NM
The Carrillo Law Firm, P.C. is a seeking a
self-motivated litigation paralegal for their
busy litigation practice. A minimum of 5
years of experience working as a paralegal in
the areas of civil litigation, employment law,
civil rights defense, and/or insurance litigation is required for the position. Candidate
must possess knowledge of local rules, court
filing procedures, have excellent writing and
proofreading skills, and be proficient with
Microsoft Word, Excel and Outlook. A degree
or paralegal certification is preferred, but we
will consider experience in lieu of education.
Competitive salary and benefits offered. All
inquiries are kept confidential. Please email
resumes to [email protected].
Services
Briefs, Research, Appeals­—
Leave the writing to me. Experienced, effective, reasonable. [email protected]
(505) 281 6797
Contract Paralegal
Paralegal with 25+ years of experience available for work in all aspects of civil litigation
on a freelance basis. Excellent references.
[email protected].
Positions Wanted
2014 Central SW- Luxury attorney’s office
with secretarial space. Rent includes utilities,
phone system, internet, parking, and conference room. Near all courthouses. Contact
Nathalie at (505) 243-1706.
Office Space
Need Office Space?
Plaza500 located in the Albuquerque Plaza
Office building at 201 3rd Street NW offers
all-inclusive office packages with terms as
long or as short as you need the space. Office package includes covered parking, VoIP
phone with phone line, high-speed internet,
free WiFi, meeting rooms, professional reception service, mail handling, and copy and fax
machine. Contact Sandee at 505-999-1726 or
[email protected].
Miscellaneous
Search for Will
Please contact attorney Kristi A. Wareham
at (505) 820-0698 if you have any information about a will prepared for and executed
by Janet M. Montoya, who resided in Santa
Fe County, New Mexico upon her death on
December 6, 2015.
NEW MEXICO LAWYERS and JUDGES ASSISTANCE PROGRAM (JLAP)
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the person that I’ve always wanted to be. This
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Are You Looking for a FT
Legal Assistant/Secretary?
7-8 years experience. Want to work in
Personal Injury or Insurance Defense area
ONLY. Gen./Civil Litigation. Professional.
Passionate about career. Transcription,
Proofreading/Formatting, Organized, Attn.
to Detail, E-filing in Odyssey-CM/ECF,
Cust. Svc. Exp., Basic Pleadings, Discovery
Prep./Answer, Calendaring, Quick Learner,
Punctual. File Maintenance, Word, Outlook,
Excel, Monitoring/Replying/Saving Emails.
Please contact LegalAssistant0425@yahoo.
com for Resume, Salary Expectations and
References.
42
Plaza 810 in Santa Fe is offering up to nine (9)
fully furnished offices, available secretarial
spaces, high speed internet, free Wi-Fi, telephone, copying services, three conference
rooms (2 with AV capability) receptionist,
on-site parking, easy access to courthouses
and the Round House, available now, please
call 505-955-0770. [email protected], www.
plaza810.com.
Luxury Office Space Available
Receptionist
Small uptown Albuquerque family law firm
seeks full-time receptionist to join our team
M-TH 8:00-5:30, F 8:00-noon. We offer competitive pay, benefits upon hiring, including
health insurance and paid sick & annual
leave, in a positive and friendly workplace.
Applicants should be adept in MS Word,
Outlook & Excel; legal experience a plus but
not required. This position requires strong
customer service skills, efficiency, and organization. Please submit resume to info@
nmdivorcecustody.com or call Juan Diego
at 505-881-2566.
Newly Constructed Turnkey
Permanent or Temporary Full
Service Office Space and Conference
Rooms in Santa Fe
Bar Bulletin - March 2, 2016 - Volume 55, No. 9
Free, confidential assistance to help identify and address problems
with alcohol, drugs, depression, and other mental health issues.
Help and support are only a phone call away.
Confidential assistance – 24 hours every day.
Judges call 888-502-1289
Lawyers and law students call 505-228-1948 or 800-860-4914
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When First Impressions Matter
Featuring:
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Quality, full-color printing.
Local service with fast turnaround.
For more information, contact Marcia Ulibarri at
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Bar Bulletin - March 2, 2016 - Volume 55, No. 9
43
Advertising sales now open!
2016-2017
Bench & Bar Directory
To make your space reservation,
please contact Marcia Ulibarri
505-797-6058 • [email protected]
Advertising space reservation deadline: March 25, 2016
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